Friday, August 14, 2015

Why marriage licenses?

A question about the religious opt-out arguments surrounding same-sex marriage. Note that I ask this question as someone who does not believe such opt-outs should be allowed and who believes that clerks and other public officials should lose these cases. I also ask as someone who does not share the particular religious views driving the discussion:

What is so special about issuing marriage licenses?

All of the action has been around clerks and clerks offices having to issue licenses to same-sex couples and demanding opt-outs from that ministerial task based on deeply held religious beliefs. But it seems to me that public officials and employees are required to process and handle all sorts of forms, requests, and documents that require them to recognize and treat as married same-sex couples. And this would seem to be just as much in violation of their deeply held religious beliefs. To name just a few:

• Granting a second-parent adoption to a same-sex couple (which requires a finding that the adopting parent is the spouse of the biological parent)

• Processing a death certificate listing a same-sex spouse (this was the claim at issue in Obergefell itself)

• Processing the paperwork for a person to receive health insurance and benefits from her state-employee same-sex spouse

• Processing a name change on a drivers' license for a same-sex couple who married and want to combine names or where one person wants to take the other's name

• Processing a joint tax return for a same-sex couple

I am sure there are others that I am not thinking of. And that is before we get into private actors and public-accommodation laws. Or less misiterial issues, such as police officers responding to domestic-violence calls or hospital staff allowing a person to make medical decisions (without a written advance directive) from a same-sex spouse. Yet we do not hear about similar opt-out requests in any of these contexts. And when state officials, such as Texas AG Ken Paxton, endorse these accommodations, they only spoke about protecting against having to issue licenses and never these or similar duties.

Wouldn't the religious-objection logic apply equally to each of these situations? And if not, why not?

Posted by Howard Wasserman on August 14, 2015 at 09:31 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (7)

Thursday, August 13, 2015

A first take on recalcitrant county clerks

Judge Bunning of the Eastern District of Kentucky preliminarily enjoined the county clerk of Rowan County from enforcing a policy of declining to issue all marriage licenses so as to avoid having to issue licenses to same-sex couples. This is the first detailed challenge to a county clerk refusing to abide by Obergefell and state orders to comply with Obergefell.

Update: The office turned away a same-sex couple (although not the plaintiffs) this morning (H/T: Josh).

Thoughts after the jump.

1) The policy involved here was especially broad. The clerk did not argue that she should not personally have to issue licenses but that another staffer in the office would. Rather, she objected to licenses being issued in her  name as the county clerk, insisting that doing so both compelled her to speak and cause her to endorse and enable conduct that violates her religious beliefs.

2) The case was less about Obergefell than about the general fundamental right to marry (which, under Obergefell, applies equally to same- and opposite-sex couples). The right was substantially burdened for all couples either having to go to a neighboring county to receive a license or get the license from the county judge (who is authorized to issue licenses if the clerk is unable to do so). Interestingly, unlike the Fifth Circuit in the clinic-regulation cases, the court recognized that requiring people to travel (perhaps as long as an hour) to another county could burden those who like the financial, physical, or practical means to travel and thus should not be considered a less-burdensome alternative.

3) The court held that Kentucky county clerks act as state, rather than county, officials in making office policies with respect to issuing marriage licenses. This does not affect an action for injunctive relief. But it does affect the potential for plaintiffs to pursue damages against recalcitrant officials and offices, which is another tool for ensuring compliance with Supreme Court precedent. Damages are not available against state (as opposed to local) entities, so the clerk's office cannot be sued for damages,* although the clerk herself could be sued both for her own refusal to issue licenses, as well as for her role in supervising or ordering her employees not to issue licenses. But being able to sue the office means the plaintiffs would not have to deal with qualified immunity, which is not available to municipalities. The clerk herself can raise qualified immunity, which means damages are not going to be available, at least until a significant body of law builds up.

[*] The court here attributed it to the Eleventh Amendment, a common and unfortunate mistake. Section 1983 (the source of a constitutional damages action) is § 5 legislation that, at least in constitutional cases, is congruent and proportionate to the rights protected by § 1 of the Fourteenth Amendment. The problem is that the Court held that Congress did not abrogate sovereign immunity because "persons" in § 1983 does not include sovereigns. But, as the doctrine developed, Congress could have done so. Thus, the unavailability of damages against the state on constitutional claims is a product of statutory interpretation, not the Constitution.

Update: Note the nuance with respect to the couple denied the license this morning. The clerk is not in contempt because the injunction only protects the five named couples and only obligates her to issue licenses to those five couples. This new couple has to go back to Judge Bunning (either in a new lawsuit or by intervening) and have the injunction extended. Then someone can hold the clerk in contempt--which, frankly, is exactly what she is hoping will happen.

Further Update: This story reports that one of the plaintiff couples (including the named plaintiff) also tried to get licenses on Thursday and were denied. And now the clerk can be held in contempt.

Posted by Howard Wasserman on August 13, 2015 at 09:36 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (3)

Monday, August 10, 2015

History of satire

I have been radio silent for the past couple weeks, trying to put the final touches on a new article for August submission (more on that in a few days, hopefully). So, in honor of Jon Stewart's final episode last week, I will do a "hey, check-this-out" post, recommending this week's Backstory podcast, National Lampoon: Satire in American History, and the accompanying essay on the role that satirical magazines played in the 1884 presidential election (Cleveland Defeats Blaine).

I stopped regularly watching Stewart (I would watch pieces online, but it stopped being appointment viewing), largely because at some point I became unable to watch satire of a media and political landscape that is so ridiculous as to be self-satirizing. Making fun of it seemed redundant. Still, I enjoy discussions of satire as a form, especially as it implicates the First Amendment (the podcast features Rod Smolla talking about Hustler v. Falwell) and current politics (there is a short segment on why conservative satire does not catch on to the same degree).

Posted by Howard Wasserman on August 10, 2015 at 09:31 AM in Article Spotlight, First Amendment, Howard Wasserman | Permalink | Comments (0)

Wednesday, June 24, 2015

Policing False Speech in Political Campaigns

I'm working on the update memo for my Mass Media Law casebook while simultaneously working on a new edition, which means I'm coming across some interesting cases I missed when they came out. One of these is Eighth Circuit's decision in  281 Care Committee et. al. v. Arneson, No. 13-1229 (Feb. 13, 2014), which strikes down a Minnesota law attempting to assign administrative law judges and county attorneys the job of policing the truth of statements partisans make for or against ballot initiatives. Arneson involved a challenge by advocacy organizations to the constitutionality of a Minnesota law making it a gross misdemeanor for a person to prepare or publish a political advertisement or campaign materials supporting or criticizing “a ballot question, that is false, and that the person knows is false or communicates to others with reckless disregard of whether it is false.” Minn.Stat. sec.211B.06, subd. 1. Under the statute, any person can trigger an investigation by an administrative law judge to determine whether probable cause supports the complaint. Upon such a finding, the ALJ may refer the case to a panel of three ALJs for further determination or may refer the matter to a county attorney to prosecute.

A district court held that the statute served a compelling interest in preserving fair elections and preventing frauds on the electorate. The U.S. Court of Appeals for the Eighth Circuit reversed. The Eighth Circuit held that the advocacy organizations had standing to challenge the statute and that the statute was a content-based regulation of political speech that violated the First Amendment. The district court, citing the plurality and concurrences in  United States v. Alvarez (striking down the Stolen Valor Act), determined that the appropriate constitutional standard was intermediate scrutiny, but the Eighth Circuit distinguished Alvarez because it did not involve core political speech; moreover, the court noted that the false assertion criminalized by the Stolen Valor Act--that one received a military honor one did not receive--is verifiable objectively. In contrast, the Minnesota law targeted "false" political speech that was likely to include opinion or other unverifiable political speech. The court therefore concluded that strict scrutiny was the appropriate standard to judge the Minnesota law. 

Applying strict scrutiny the court determined that, regardless of whether Minnesota’s interests in passing the statute were compelling, the statute was neither necessary nor narrowly tailored but instead was  “simultaneously overbroad and underinclusive, and [was] not the least restrictive means of achieving any stated goal.” The court bolstered this conclusion by observing that the State had failed to show “an actual, serious threat of individuals disseminating knowingly false statements concerning ballot initiatives.” Furthermore, and more central to the court’s analysis, was its determination that the statute “tends to perpetuate the very fraud it is allegedly designed to prohibit.” As the court cannily deduced, the Minnesota statute lends itself to use by political adversaries seeking to undermine the message of their opponents. Filing a complaint against one’s opponent can be used as a political tool to undermine the opponent’s message and force the opponent to “’to devote time, resources, and energy defending themselves.’” All of these strategic political goals can be accomplished  by a complainant whether or not his or her complaint is meritorious. The filing of the complaint itself becomes a news item and casts doubt on the credibility of the speaker, and the investigation takes up time and money even if the investigation ultimately terminates in one’s favor.

In light of this political reality, the court concluded that the mens rea requirement in the statute was not enough to render it constitutional. Most of the statute's chilling effect on political speech occurred because any person can file a complaint under the statute at any time: “[M]ost cynically, many might legitimately fear that no matter what they say, an opponent will utilize [the statute] to simply tie them up in litigation and smear their name or position on a particular matter, even if the speaker never had the intent required to render him liable.”

 The court further explained that the statute’s exemption for news media made its unconstitutionality all the more apparent. Exempting the media from liability for false statements while targeting advocacy groups did not advance the state’s interests in policing election fraud. The underinclusiveness of the statute undermined the state’s claims that its speech restrictions were necessary to achieve its stated aims.

Ultimately, the court’s decision to strike down the statute stemmed from both its understanding of the political process and its embrace of the First Amendment ideal of the marketplace of ideas. Counterspeech, not criminalization, is the remedy that the US Supreme Court’s decisions interpreting the First Amendment precribe for false speech during political campaigns. Counterspeech is clearly a less restrictive alternative than criminalization, and “[t]he citizenry, not the government, should be the monitor of falseness in the political arena.” 

The court's opinion thus relied on two central tenets (some would call them myths) of First Amendment jurisprudence. As I've previously described these tenets in an article called Nobody's Fools: The Rational Audience as First Amendment Ideal: "[t]he first is that audiences are capable of rationally assessing the truth, quality, and credibility of core speech. The second is that more speech is generally preferable to less." The problem, of course, is that these tenets, or assumptions, may be demonstrably wrong. False speech in political campaigns may bamboozle the electorate, if they're even paying attention. Nonetheless, the court in Arneson reached the right decision based on both Supreme Court precedent and democratic theory. An audience that is incapable of critically analyzing campaign speech is also incapable of participating in political discourse or engaging in democratic self-governance, and to abandon the ideal of the rational audience for political speech is to abandon the ideal of democracy. This is not (yet) something we're prepared to do.

 

 

Posted by Lyrissa Lidsky on June 24, 2015 at 02:53 PM in Constitutional thoughts, Criminal Law, First Amendment, Law and Politics, Lyrissa Lidsky | Permalink | Comments (2)

Monday, June 22, 2015

Walker meets Wooley

In last week's Walker v. Sons of Confederate Veterans, SCOTUS held that specialty license plates constitute government speech, meaning the state can exclude or include whatever groups or messages it wishes, regardless of how viewpoint discriminatory it is being. This basically resolves controversies currently pending in several states over pro-choice/anti-choice license plates--the state can do what it wants. It can allow for both messages, exclude both messages (albeit for different reasons than the Second Circuit relied on in upholding New York's blanket exclusion of messages relating to controversial political subjects, such as abortion), or exclude one and include the other. The Fourth Circuit is currently considering a challenge to North Carolina's program, which offers a "Choose Life" plate but rejected a plate in support of reproductive freedom. Walker ends that dispute and requires that the state's program be upheld The Fourth Circuit last year held invalidated North Carolina's program allowing for a "Choose Life" plate but not a corresponding plate in favor of reproductive freedom; a cert petition is pending.

So is there any way for a person in North Carolina to use a license plate to display a message in support of reproductive rights when the state refuses to allow that specialty plate? How about this: Pay for the "Choose Life" plate, then make a conspicuous show of placing tape or something else to cover the anti-choice logo. The First Amendment allows a driver to cover the state-speech motto on the plate, as the state cannot compel a driver to serve as a "'mobile billboard'" for the State's ideological message." Under Walker, "Choose Life" is the state's ideological message for Wooley purposes, which a driver cannot be compelled to display. The obvious way not to display the state's message is to not purchase the "Choose Life" plate, which the state does not compel (unlike New Hampshire's general "Live Free or Die" plate). On the other hand, if the state did compel that as its sole license plate, a person unquestionably could cover the logo.

It follows that First Amendment should also protect a person who combines those options: Pay the extra money for the specialty plate specifically so she can cover the state's message.* Covering a state-sponsored message with which a person disagrees involves a protected message that is different from declining to purchase and display that message in the first instance. Additional meaning flows from the person not just counter-speaking to the state message, but using the state message as the vehicle for the counter-speech. For a stark comparison, an individual is not obligated to purchase or display an American flag, although she may choose to purchase it so she can set it on fire. Each presents a different message that a speaker is entitled to put forward. Given that difference, the state should not be able to successfully argue that the driver lost her right to cover the slogan, a la Wooley, because she willingly paid extra for the plate with that slogan.

[*] There is a separate question of whether anyone would want to do this. My understanding is that in some states, a portion of the money for some specialty plates goes to the cause reflected on the plate. So a supporter of reproductive freedom will not buy the "Choose Life" plate, even to make the statement of covering the logo, if the money is going to anti-choice causes.

Thoughts?

Posted by Howard Wasserman on June 22, 2015 at 09:31 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (12)

Thursday, June 18, 2015

SCOTUS Decides the Confederate Plates Case (5-4)

The US Supreme Court today held that the Texas Department of Motor Vehicles did not violate the First Amendment when it rejected a proposed license plate featuring the confederate battle flag. The majority opinion, authored by Justice Breyer and  joined by Justices Thomas, Ginsburg, Sotomayor, and Kagan, reached this conclusion by deploying the relatively newly minted government speech doctrine to allow Texas to pick and choose what messages its drivers can display on their specialty license plates based on whether others might find those messages offensive. Justices Roberts, Scalia, Alito, and Kennedy dissented. 

Like many other states, Texas has a specialty license plate program through which it raises funds by allowing a variety of groups to create specialty plates. Justice Breyer's majority opinion notes, for example, that Texas has approved plates "featuring the words 'The Gator Nation,' together with the Florida Gators logo." [As a UF professor, I appreciate the SCOTUS shout-out!] Justice Breyer also notes that Texas has approved plates with slogans offered by private companies, such as "Get it Sold with RE/MAX." Writing for the majority, Justice Breyer nonetheless concludes that these messages are government speech, branded with the "imprimatur" of Texas.

The case began in 2009, when the Sons of Confederate Veterans (SCV) first submitted to Texas a plate with their name, their organizational logo, and the Confederate battle flag. After public comment and an open meeting to consider the plate, the Texas Department of Motor Vehicles Board rejected the plate on the grounds that "many members of the general public find the design offensive." The Board further deemed such comments by  the public to be "reasonable." (emphasis mine) [Cf. Snyder v. Phelps!] The SCV sought an injunction to force the Board to approve the plate on the ground that the denial violated the First Amendment. A federal district court entered judgment for the Board, but a panel of the US Court of Appeals for the Fifth Circuit reversed, holding that the Board's viewpoint discrimination against the SCV plate was unconstitutional. 

Today, the Supreme Court held that Texas is the speaker when it chooses the contents of specialty license plates. In other words, the contents of the specialty plates are government speech, and Texas is therefore free to engage in viewpoint discrimination in choosing which plates to approve, subject to the constraints of the "democratic electoral process." The majority posited that the "government would not work" were it not free to convey its messages in the way it sees fit: "as a general matter, when the government speaks it is entitled to promote a program, to espouse a policy, or to take a position. In doing so, it represents its citizens and it carries out duties on their behalf." 

A reasonable observer could be forgiven for assuming that a Texas plate that favors The Gator Nation represents the views of the driver of the automobile rather than the views of the State of Texas. But the Court concluded that the plate messages are government speech based on the following. First, license plates historically have been used to convey state messages. "Second, Texas license plate designs 'are often closely identified in the public mind with the [State]." [The majority's process of discerning the "public mind' is a little unclear.] Third, Texas controls messages on its license plates by requiring Board approval of every plate design, a process which grants "final approval authority [that] allows Texas to choose how to present itself and its constituency." 

The Court further concluded that license plates do not constitute forums for the speech of private individuals (such as the drivers who choose the plates).  The Court emphasized that license plates, unlike public parks, are not traditional public forums [but then again neither are teacher mailboxes, as in Perry Education Ass'n]. More controversially, the Court asserted that the license plates are not designated public forums because the policies and practices of the state of Texas manifest its intent to maintain control of them. The opinion placed great weight on the fact that Texas has "final authority" to approve content, and it also emphasized the traditional role of license plates as "primarily . . . a form of government ID [that] bear[s] the State's name." In doing so, the opinion seems to ignore the conversion of the "traditional" license plate system into a revenue-raising scheme for the state. 

Finally, the majority rejected the notion that the plates are a non-public forum that can be used by private speakers, reasoning that the plates are predominantly used by Texas for its own "expressive conduct." As the opinion states, "we reach this conclusion based on the historical context, observers' reasonable interpretation of the messages conveyed by Texas specialty plates, and the effective control that the State exerts over the design selection process." 

 This 5-4 decision highlights a flaw in First Amendment doctrine that I've previously discussed in an article on public forum doctrine and government speech in social media. That flaw is that current doctrine "does not contemplate the possibility that [a forum for speech] might involve both government speech and a public forum." Supreme Court precedent left the majority with a Boolean choice: either the plates were a public forum or they were government speech. If the plates were a public forum, Texas's rejection of  any imaginable  plates on the grounds of offensiveness would constitute content-based and viewpoint-based discrimination in violation of the First Amendment. The result would be that Texas, and perhaps most states, would eliminate specialty license plate programs even if it meant giving up the extra revenues they bring. [Not that this result would be so terrible.] On the other hand, if the plates were deemed government speech, Texas could maintain the program while blocking the most objectionable types of plates. Reality, however, is more complicated than current free speech doctrine. The reality is that Texas specialty plates contain both government speech and private speech on one small square of metal. This case just points out the absurdity of having to choose inflexible doctrinal categories to get to a desired outcome. 

Justice Alito's dissent rightly observed that the case sets a dangerous precedent, allowing the government to regulate any offensive speech on government property simply by retaining final approval authority over that speech. Justice Alito refocused the historical analysis of licenses plates on the point AFTER the development of specialty plate programs, concluding that "history here does not suggest that the messages at issue are government speech." He also examined how the Texas license plate approval process actually worked: Texas accepts all private messages submitted "except those, like the SCV plate, that would offend some who viewed them." The mere fact that Texas has given its "blessing" to the private speech on most plates does not make those plates government speech. Instead, "Texas, in effect, sells [license plate] space to those who wish to use it to express a personal message," and by doing so, creates a limited public forum. Texas' decision to reject the SCV plate, or indeed  to reject any plate on grounds of offensiveness, was therefore unconstitutional viewpoint discrimination. 

 

 

 

Posted by Lyrissa Lidsky on June 18, 2015 at 04:51 PM in Constitutional thoughts, First Amendment, Lyrissa Lidsky | Permalink | Comments (0)

First Amendment Day at SCOTUS

SCOTUS on Thursday decided the final free speech cases of the Term.

In Walker, the Court held that the messages on specialty license plates constitute government speech rather than private speech is a government-created public forum. The Court split 5-4; Breyer wrote for Thomas, Ginsburg, Sotomayor, and Kagan, while Alito dissented joined by the Chief, Scalia, and Kennedy.

When this issue first began bubbling up in the '90s, my quick conclusion (even before Summum, the case at the heart of the dispute between the majority and the dissent) was that specialty plates were government speech. Governments used these plates for their own messages ("Live Free or Die" "Famous Potatoes" "The Lone Star State") and the specialty-plate programs simply expanded the range of message government would adopt and present as its own.* And a viewer can understand that a driver with one of those plates agrees with that message.

[*] By contrast, I believed--and still do--that alpha-numeric codes used in vanity plates constitute individual speech in a limited public forum that should be subjected to closer First Amendment scrutiny.

But Alito's dissenting opinion was quite convincing, particularly in that it was an excellent and very accessible read. I was particularly moved by the two hypotheticals he presented--1) an electronic highway billboard containing some government messages, but on which government opens space for private speakers to rent space for their own messages and 2) a public-university campus bulletin board or listserv which includes some government messages and is open to private messages. Alito's point is that, under the majority's analysis, these speech locations could as easily be called government speech and government "adoption" of certain paid-for private messages.

The second decision is Reed v. Town of Gilbert, holding that a municipal sign ordinance that imposed less-favorable conditions on "directional" signs compared with "ideological" or "political" signs was content-based and did not survive strict scrutiny. Thomas wrote for the Chief, Scalia, Kennedy, Alito, and Sotomayor, with Alito, joined by Kennedy and Sotomayor also adding a concurrence; Kagan, writing for Ginsburg and Breyer, concurred only in the judgment, with Breyer adding his own concurrence-in-the-judgment. Based on some listserv discussions, this could line up as a significant case on the ground.

The cornerstone of Thomas' opinion is a broad construction of what constitutes a content-based (in the sense of subject-matter-based) restrictions subject to strict scrutiny. He identified four categories of content-based regulations: 1) Those that are content-based on their face by defining the regulated speech by its subject-matter; 2) those that define the regulated speech by its function or purpose; 3) those that are facially content-neutral, but that cannot be justified without reference to the content of the regulated speech (that is, the underlying harms only arise because of the content of the speech); and 4) those that are facially content-neutral, but that were adopted by the government because of disagreement with the message conveyed by the regulated speech. For those who view the content-neutrality requirement as an important means of protecting First Amendment interests, there is a lot to like in this. If Thomas is serious about this taxonomy, it could be used to look under the hood of a significant number of seemingly content-neutral regulations that really were enacted to limit certain speech and certain speakers, especially speech and speakers associated with a particular location.** The last two categories also will prevent government from pleading "pure" legislative motive so as to avoid strict scrutiny. [Update: Some email discussions raise the possibility that Thomas's taxonomy eliminates the "secondary effects doctrine" for regulating nude dancing and other sexually explicit speech, one of the clearest examples of a facially content-based regulation treated as content-neutral]

[**] While I hate playing amateur psychologist, one obvious example would be the buffer-zone and other regulations on reproductive-health clinic protests, such as in McCullen and Hill, which were treated as content-neutral, but which would seem to fall into the fourth category.

Kagan, Ginsburg, and Breyer were troubled by this seeming expansion of non-neutrality, perhaps because of concerns for what this might mean for commercial regulations or other innocuous regulations that do not pose meaningful threats to public debate (for example, allowing for permanent "Hidden Driveway" signs but not other permanent signs). Breyer even offered a new, more even balancing test placing less of a thumb on the scale of free speech, asking whether the harm to First Amendment interests is disproportionate in light of the state's regulatory interests (he offered a similarly soft balancing test in his concurrence in the judgment in Alvarez). Kagan insisted that it was unnecessary to determine whether the ordinance was content-based, since it could not even survive intermediate scrutiny as a content-neutral regulation; the ordinance was both overbroad and under-inclusive and the government offered no reasons for the distinctions or limitations it imposed.

Posted by Howard Wasserman on June 18, 2015 at 01:25 PM in First Amendment, Howard Wasserman | Permalink | Comments (2)

Thursday, June 11, 2015

The Chief, the First Amendment, and the assignment power

At CoOp, Ron Collins writes about Chief Justice Roberts' emergence as the Court's leading voice on the First Amendment, a voice that "is already towering over that of others on the Court." Collins emphasizes the number of free speech majority opinions Roberts has authored in his decade on the Court--13, far more than the next two Justices (Scalia and Kennedy) combined, usually (with several notable exceptions) upholding the free speech claim, whether for better or worse.

But as I wrote in a comment to Ron's post, counting majority opinions is confounded somewhat by the fact that, as Chief, Roberts wields the assignment power whenever he is in the majority. And one reason he writes so much more than any other Justice is that he keeps assigning these cases to himself. Obviously, Roberts must hold a generally highly speech-protective vision of the First Amendment (perhaps Collins is correct that it is the most protective on the Court) in order to be in the majority and thus in position to assign the opinion. But Chief Justice Warren also was consistently in the majority in free speech cases, also usually to uphold the constitutional claim. The difference is that Warren assigned many of these cases to Justice Brennan, which enabled Brennan to emerge as the Court's second great First Amendment voice.

Roberts could as easily have assigned some of these cases to, for example, Kennedy--who has joined most of Roberts' free speech opinions and thus shares a similar First Amendment vision--in the same way. That he has not done so could tell us many different things. It could be about Roberts' unique views of the First Amendment and his specific desire to carry the First Amendment mantle. But it also could be about Roberts' unique views of the assignment power.

Update: A reader shares this 2013 Judicature essay by Linda Greenhouse exploring Roberts' self-assignment practices, which notes the prevalence of First Amendment (including religion) cases that Roberts has kept for himself.

Posted by Howard Wasserman on June 11, 2015 at 09:31 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (8)

Monday, June 01, 2015

What took so long?

The waiting is over, although still no indication of cause: SCOTUS finally decided Elonis v. US, six months to the day after argument. As expected, the Chief wrote the opinion, deciding the case entirely on statutory grounds and declining to reach the First Amendment question. Justice Alito concurs in part and dissents in part, Justice Thomas dissents.

Still working my way through the opinion. I may have more to say later, including perhaps some speculation about why what ended up as a statutory case took so long.

Posted by Howard Wasserman on June 1, 2015 at 11:37 AM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Tuesday, May 26, 2015

Whither Elonis?

Another SCOTUS opinion day (and possibly another opinion week) has passed and still no Elonis v. United States, the true threats case argued on December 1. It is all-but-certain that the Chief has the opinion (he is the only one who has not released a majority opinion from the December sitting), which instinctively leads me to believe that the petitioner is going to win. But what could be taking the Court so long? And does the six-month wait hint at anything?

Conversations with some First Amendment colleagues have me thinking that the opinion is potentially significant to current free speech controversies over "hate speech," such as racist speech on campus or the anti-Islam messages of AFDI, etc. These controversies have shown that incitement and fighting words as categories of unprotected speech have been so substantially narrowed as to not provide a meaningful check against hateful speech (which I obviously do not find problematic, but many people do). A broad conception of "true threats"--for example, if the threatening nature is defined by what a reasonable listener would conclude rather than what the speaker subjectively intended--potentially fills that gap. On that former conception, the hypothetical that some have proferred in which the Oklahoma SAE bus stopped in front of a Black fraternity and sang a line such "you can hang them from a tree" potentially becomes an unprotected true threat.

Speaking of expansive applications of true threats, this Slate piece by David Cohen (Drexel) and attorney Krysten Connon discusses the recent death and legacy of Neil Horsley. Horsley was the founder of the "Nuremberg Files" website, which published personal information about doctors who perform abortions; posted photos of doctors in "WANTED" posters and called for justice against abortion providers akin to the justice meted against the Nazis at Nuremberg; and tracked those who had been wounded (by graying out their names) or killed (by striking through their names). A divided en banc Ninth Circuit affirmed a multi-million dollar judgment in favor of Planned Parenthood, concluding that the web site did constitute a true threat of violence against abortion providers. The court applied a "reasonable speaker" test, which asked whether a reasonable speaker would foresee that those to whom the message was directed would interpret as a serious expression of intent to harm.

Posted by Howard Wasserman on May 26, 2015 at 11:58 AM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Sunday, May 17, 2015

We've come a long way, but in which direction?

It appears that a political science professor at Duke University is under the gun, and perhaps has been placed on leave, over an online response to a New York Times editorial about racism and Baltimore. It is not entirely clear what has happened-the professor has told some media outlets that he was placed on leave; Duke declined to comment on his status, while condemning the remarks as "noxious, offensive, and hav[ing] no place in civil discourse" and calling on the Duke "community to speak out when they feel that those ideals [of inclusiveness] are challenged or undermined, as they were in this case."

Because Duke is a private institution, the First Amendment is not in play here. Nevertheless, I hope that principles of free expression, academic freedom, and tenure prevail and keep Duke from sanctioning Hough. In fact, I hope Duke would borrow a page from my alma mater.

For years, Arthur Butz has been an electrical engineering professor at Northwestern, despite having authored a 1976 book denying the Holocaust. In 2006, Butz supported Iranian President Mahmoud Ahmadinejad's Holocaust denial, prompting sixty engineering professors to call for Butz's censure. The response, from then-President Henry Bienen, is reprinted in full after the jump. Importantly, it includes lines such as "he is entitled to express his personal views" and "we cannot take action based on the content of what Butz says regarding the Holocaust - however odious it may be - without undermining the vital principle of intellectual freedom that all academic institutions serve to protect."

It will be interesting to see whether Duke understands intellectual and academic freedom in similar terms.

Update: This Washington Post story, echoing what several people said in comments, states that Hough himself has disavowed reports (such as the Slate piece) that he was placed on leave following the comments, telling an area newspaper that he already had been on academic leave this year and that he is due to stop teaching in 2016. So, I guess, good for Duke.

Northwestern University Associate Professor Arthur Butz recently issued a statement commending Iranian President Ahmadinejad's assertion that the Holocaust never happened. Butz is a Holocaust denier who has made similar assertions previously. His latest statement, like his earlier writings and pronouncements, is a contemptible insult to all decent and feeling people. While I hope everyone understands that Butz's opinions are his own and in no way represent the views of the University or me personally, his reprehensible opinions on this issue are an embarrassment to Northwestern.

There is no question that the Holocaust is a well-documented historical fact. The University has a professorship in Holocaust Studies endowed by the Holocaust Educational Foundation. Northwestern offers courses in Holocaust Studies and organizes conferences of academic scholars who teach in areas relating to the Holocaust. In addition, Northwestern hosts a summer Institute for Holocaust and Jewish Civilization. And most recently, a fellowship in the political science department has been established in my name by the Holocaust Educational Foundation. In short, Northwestern University has contributed significantly to the scholarly research of the Holocaust and remains committed to doing so.

Butz is a tenured associate professor in electrical engineering. Like all faculty members, he is entitled to express his personal views, including on his personal web pages, as long as he does not represent such opinions as the views of the University. Butz has made clear that his opinions are his own and at no time has he discussed those views in class or made them part of his class curriculum. Therefore, we cannot take action based on the content of what Butz says regarding the Holocaust - however odious it may be - without undermining the vital principle of intellectual freedom that all academic institutions serve to protect.

Posted by Howard Wasserman on May 17, 2015 at 01:40 PM in First Amendment, Howard Wasserman | Permalink | Comments (12)

Wednesday, May 13, 2015

Muslim cartoons and Nazis in Skokie

Here is a nice post from Ron Collins (CoOp) on several different angles and issues in the controversy over Pam Geller and the cartoon contest. Interestingly, Collins compares this controversy to the Nazis marching in Skokie in 1977, which similarly divided the left on the appropriate protection for hateful, deliberately provocative speech that might provoke violence. Collins points out that the National ACLU has been unequivocal as to Geller, insisting that "it’s not even a tough question" that what she is doing is protected by the First Amendment. The ACLU famously lost money and members over its decision to represent the Nazis back in the day.

Collins also links to this piece in Reason comparing The New York Times' op-ed page position on Skokie with its position on the cartoons. It includes excerpts from last's week's editorial and from January 1, 1978's Nazis, Skokie and the A.C.L.U. The comparison reveals the shifting "yes, but" that Paul identified. Thirty-seven years ago, The Times never felt the need to suggest that Frank Collin's stunt was "not really about free speech," but instead was "an exercise in bigotry and hatred posing as a blow for freedom." Rather, that piece placed the burden on the People of Skokie to "demonstrate their respect for the law" by not engaging in violence.

Again, none of this affects the legal protection of anyone's speech. But there is a rhetorical and narrative difference that does make a difference.

Posted by Howard Wasserman on May 13, 2015 at 01:31 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (9)

Saturday, May 09, 2015

The First Amendment's Burden of Persuasion

In his post on that NYT editorial about Pam Geller and the cartoon contest. Paul says the following:

But their typical "yes, but" editorials on the subject would generally have ended with the civil libertarian point: yes, the speech is contemptible, but, followed by cut-and-paste quotes by Holmes and Brandeis. This is a "yes, but" editorial with the opposite orientation: yes, the speech is protected, but....

Of course, it is not only The Times that  has long utilized that first "yes, but" structure; courts do it, as well. Consider Chief Justice Roberts in Snyder v. Phelps:

Westboro believes that America is morally flawed; many Americans might feel the same about Westboro. Westboro's funeral picketing is certainly hurtful and its contribution to public discourse may be negligible. But . . .

Or Roberts' former boss, Chief Justice Rehnquist, in Hustler v. Falwell:

There is no doubt that the caricature of respondent and his mother published in Hustler is at best a distant cousin of the political cartoons described above, and a rather poor relation at that. If it were possible by laying down a principled standard to separate the one from the other, public discourse would probably suffer little or no harm. But we doubt that there is any such standard  . ..

Several years ago, Erica Goldberg wrote at CoOp that she regretted the continued need for that "yes but" structure: "The day that I don’t have to disassociate myself from the speech that I am defending is the day that I can stop worrying so much about the state of free speech issues on campus." In fact, really, it always has been thus.

This is why I believe Paul is onto something that reflects a change in how we think and talk about the freedom of speech. In a comment to Paul's post, I described this as shifting the burden of persuasion. The first orientation acknowledges the speaker and the speech as contemptible, but celebrates First Amendment principle; the second orientation acknowledges the First Amendment, but focuses on condemning the speech and the speaker. Put another way: The first version focuses on celebrating First Amendment principle while accepting the speaker/speech as the cost of that; the  second version focuses on condemning the speaker/speech while accepting the First Amendment as the cost, but one that demands the forceful condemnation as more necessary and more essential. Put a third way: The first structure seems to say "We don't like these speakers, but we have the First Amendment;" the second structure says "We're stuck with the First Amendment, but we really hate this speaker, he should not have spoken, and he may have even brought any injury on himself."

Compare that with how Roberts closed in Snyder: "As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate. That choice requires that we shield Westboro from tort liability for its picketing in this case." That is different in tone, if not substance, from what The Times and others are saying about Charlie Hebdo, Pam Geller, the cartoons, etc. Now, I am not suggesting that it is not ok to criticize offensive speech and speakers even while defending their right to speak; the First Amendment does not immunize Pam Geller from criticism.

The point, I think, is a shift in which of those things we highlight. Perhaps this shifted burden will not make a difference doctrinally. But how we perceive the First Amendment affects how we talk about it, which perhaps  affects how free speech controversies play out. If the focus is on condemnation, does the constitutional principle lose some of its luster? If the focus is on condemnation, will speakers be less willing to speak or less willing to pursue efforts to protect these principles? This, in turn, may affect how the courts eventually come to think and talk about the First Amendment.

Posted by Howard Wasserman on May 9, 2015 at 07:39 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Thursday, May 07, 2015

New York Times joins ACLU in giving up on free speech

I discussed the ACLU's strange ambivalence here and here. And that is the only way to explain this strange and appalling op-ed from The Times editorial board. (H/T: Thomas Baker). Apparently, the board can recognize the difference between "hate speech" and "free speech" (it seems to have something to do with motivation). And thus the government and/or powerful institutions--such as The New York Times--can be trusted to recognize and apply that distinction between "an exercise in bigotry and hatred" and "free speech."

I am at too great a loss to pick apart the piece's reasoning and its seeming surrender of most of the underpinnings of the First Amendment doctrine that allows The Times to be The Times. I will make three points. First, the difference between Charlie Hebdo and Pamela Geller (the head of AFDI and who organized the recent Texas Draw Muhammad event) seems to be that Hebdo satirize everyone, while Geller only goes after Muslims. I guess this means that "viewpoint neutrality" applies not to government regulation, but to speakers. Second, does the board realize that, if the term existed 55 years ago, Birmingham City Commissioner L.B. Sullivan almost certainly would have described The Times' criticism of him and southern officials as "hate speech." Three, under this "bad motive" test the op-ed suggests, Hustler v. Falwell comes out the other way, carrying with it much political cartooning and satire.

Posted by Howard Wasserman on May 7, 2015 at 10:32 AM in First Amendment, Howard Wasserman | Permalink | Comments (16)

Wednesday, May 06, 2015

A vigorous defense of free speech

On Tuesday, the writer's free speech organization PEN held its annual Literary Gala and Free Expression Awards. One award recipient was the surviving staff of Charlie Hebdo, a decision that triggered some controversy, as Steve Lubet has discussed. During his opening remarks, PEN President Andrew Solomon eloquently defended Hebdo, the decision to give it the award, and general principles of free expression. Worth a read (and a viewing--his remarks begin around 3:00 on the video above).

Posted by Howard Wasserman on May 6, 2015 at 05:42 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Tuesday, May 05, 2015

The next Erie/Hanna issue for SCOTUS?

The applicability of state anti-SLAPP provisions (specifically those that allow for a special motion to dismiss, in which a plaintiff must show a likelihood of success on the merits) in federal court. Last week, the D.C. Circuit held that such measures do not apply in federal court. The court held that two Federal Rules--FRCP 12 and 56--form an "integrated program" for granting pre-trial judgment onto which state law cannot add.

This creates a circuit split--at least three circuits (1st, 5th, and 9th) hold that state law does apply in federal court under an "unguided Erie analysis," while four judges from the Ninth Circuit (including Kozinski) reached the same conclusion as the D.C. Circuit in dissenting from denial of rehearing en banc.

Posted by Howard Wasserman on May 5, 2015 at 09:31 AM in Civil Procedure, First Amendment, Howard Wasserman | Permalink | Comments (3)

Monday, May 04, 2015

The Federalist Structure of Trademark Law Fosters Robust Public Debate

The following post is by Robert L. Tsai and Christine Haight Farley (both of American); it is their third guest post on the Washington Professional Football Team trademark case. It is cross-posted at the Sports Law Blog.

 In recent days, following a Federal Circuit ruling in one disparaging marks case (“the Slants”) and briefing in another (“Redskins”), civil libertarians and artists have joined forces to cry that the applicable provision in federal trademark law suppresses speech.  But does it?  In this post, we wish to suggest that the ban on registering disparaging marks not only does not suppress any high value speech, but might actually enhance freedom of expression.

Strong First Amendment regimes are valuable when political, social, or artistic creativity is endangered by direct regulation.  Weaker First Amendment regimes are more sensible when a complicated mix of government objectives and expressive risks is at stake. In our view, whatever doctrinal tools are ultimately used (e.g., government speech or commercial speech), a weak role for the First Amendment is most sensible in this area.

We begin with the observation that trademarks are expressive in a specific but limited commercial sense:  they are distinctive words, names, or symbols used to designate the source of a good or service and distinguish it from others in the marketplace.  Most marks by themselves are not coherent enough to constitute political or social expression.  Occasionally, one comes across a symbol that might have artistic value, but even then its contribution to public debate on matters of public importance is likely to be extremely limited.  Thus, regulation of brand names does not implicate the core of the First Amendment.

Then, there is the most obvious point: denial of registration does nothing to prevent the owner of a mark from using that mark.  We have already detailed the ways in which the registration framework does not actually suppress speech.  Beyond the fact that the Lanham Act does not inhibit speech directly, however, it also contemplates a federalist structure that helps to promote free speech.  Federal law does not create trademark rights, but merely seeks to streamline this area of law by building new federal remedies on the edifice of state law.  As the Supreme Court explained in the Trade-Mark Cases, “This exclusive right was not created by the act of Congress, and does not now depend upon it for its enforcement.”  Because federal law did not preempt state trademark law, the absence of Lanham Act remedies does not extinguish state law claims.

When no federal registration exists, a trademark owner can sue an alleged infringer in the jurisdiction where the mark is used and where the infringement occurred.  It is said that under the common law, one cannot protect a trademark that violates public policy.  But it would be up to each state to determine whether certain kinds of marks contravene that state’s established public policy.  Maine, for instance, apparently has no trouble with disparaging marks, barring only marks that are “obscene, contemptuous, profane or prejudicial… [or i]nappropriately promotes abusive or unlawful activity.”

Most states have adopted the model trademark bill patterned on the Lanham Act.  This is true in California, which also prohibits the registration of immoral, scandalous, and disparaging marks.  A trademark owner such the Slants can argue that the mark is not disparaging under California law. Even with identical statutory provisions, different outcomes in different jurisdictions are possible.  State law may base determinations on local perceptions of the mark, which may deviate from national views, and may develop different doctrines such as taking into account the mark owner’s intent to re-appropriate slurs.  Thus it is conceivable that states may reach a different conclusion about the same mark.

Does refusal to register raise the costs of enforcement?  It might very well do so, but such differences in enforcement regimes has never been enough to raise constitutional difficulties, especially in a federal system of laws that includes many built-in inefficiencies. 

These inherent inefficiencies could actually enhance liberty better in the long run than a First Amendment dominated system.  Some states would surely follow the federal government’s lead by broadly disallowing registration/enforcement of certain slurs as trademarks.  They would prefer to withdraw the state’s imprimatur from illiberal ideas and hope to discourage their use.  The fact that copycats and counterfeiters might make widespread use of the same design or logo, perhaps even to coopt the ideas for benevolent goals, would be taken as evidence of healthy public discourse.  

On the other hand, other states might see value in granting legal protection to certain taboo ideas disallowed by the federal government, by finding that particular terms are not offensive to local communities.  Or perhaps states might do so on the theory that legal protection of coopted epithets promotes dissent within ethnic communities.  Madhavi Sunder has made just this kind of argument, but the rationale does not depend on a nationwide rule.  States themselves could decide to strike their own path on how to determine when a mark “disparages.”

The key to a system characterized by a weak First Amendment is that no jurisdiction—neither federal nor state—has the obligation to reject or endorse disparaging marks.  Rather, the government’s power to ensure broad participation in the marketplace and guard against illiberal business practices are treated as just as important as an individual right to expression.  It is worth remembering that even in a weak First Amendment regime, the Constitution would still remain powerfully available in the background, protecting against direct efforts to stamp out disparaging ideas.

This more nuanced approach that can only flourish if the First Amendment is not deployed in a one-size-fits-all manner requiring government to protect whatever a trademark applicant demands.  If the strong First Amendment position prevails, then state and federal restrictions on trademark content would be swept aside, across the board.  By operation of the Fourteenth Amendment, every level of government would have to endorse and subsidize morally repugnant marks.

The people of each state would no longer be allowed to determine public policy in this domain or to express their view that certain commercial practices are illiberal.  In such a world, free speech principles might reign nationally in trademark law, but one should wonder whether they would really promote robust debate.       

 

Posted by Howard Wasserman on May 4, 2015 at 12:57 PM in First Amendment, Howard Wasserman, Intellectual Property | Permalink | Comments (0)

Thursday, April 30, 2015

Shutting down the forum

When government opens a traditional or designated public forum, viewpoint-based restrictions are virtually per se unconstitutional and content-based restrictions must survive strict scrutiny. The risk is that, faced with having to permit objectionable speech in the forum, government will shut down the forum altogether for all speakers or redefine the designated forum to remove the objectionable speech from the forum's scope. These restrictions receive less (at times no) constitutional scrutiny. And the result is a dramatic decrease in the overall amount and level of expression.

The latest example comes from New York and the ads on its trains and buses. Last week, Judge Koeltl of the Southern District of New York held that MTA violated the First Amendment in rejecting a billboard from the American Freedom Defense Initiative, a pro-Israel/anti-Islam group that engages in highly provocative rhetoric in ads on public transit facilities (the latest ad featured a purported quotation from Hamas-connected media saying "Killing Jews is Worship that draws us close to Allah"). Judge Koeltl held, correctly, that MTA's ad spaces constitute a public forum, the ad was neither fighting words nor incitement, and rejecting the ad did not survive strict scrutiny.

On Wednesday, MTA responded by voting 9-2 to no longer allow "viewpoint advertising" in MTA spaces. In other words, the government shut down the forum rather than allow some objectionable speech in. The Board ignored the urging of the head of the New York Civil Liberties Union, who argued in part that "The New York City transit system is our public square. It is where virtually all of us pass through day in and day out. And because of that, it is a central part of our free speech in New York City." He was joined by AFDI head Pamela Geller, who apparently used the same provocative rhetoric as in her ads.

One Board member countered by identifying the problems with "hateful speech" and the right of transit riders to reach their destinations in "safety and serenity." Both propositions are inconsistent with the prevailing vision of the First Amendment--hateful speech is constitutionally protected and members of the public do not have a right to avoid unwanted speech in the name of their "serenity." More importantly, these comments reflect the viewpoint discrimination underlying a nominally content-neutral regulation. Although all political speech is excluded from the forum, the move is justified and motivated entirely by the government's desire to prohibit only one side of that content. But because we generally do not get into the motive underlying a facially content-neutral restriction, none of that matters.

Of course, this is the paradox of the First Amendment's content distinction--the government is on safer footing the more speech it restricts. The MTA cannot restrict only AFDI's offensive political ads, so it restricts all political ads. In doing so, however, it removes a substantial amount of speech from the public space, deprives the public of a substantial amount of information and ideas, and deprives speakers of an important way to reach an audience. So long as we ignore even blatantly viewpoint-based motivations, this always will be the result.

Posted by Howard Wasserman on April 30, 2015 at 09:41 AM in First Amendment, Howard Wasserman | Permalink | Comments (5)

Thursday, April 23, 2015

The First Amendment and the Redskins’ Trademark, Part II: A Shot Across the Bow from the Federal Circuit

The following post is by Christine Haight Farley and Robert L. Tsai  (both of American); it is their second guest post on the Washington Professional Football Team trademark case. It is cross-posted at the Sports Law Blog.

On Tuesday, the Federal Circuit issued a unanimous decision (In re Tam) holding that the mark THE SLANTS was properly refused registration because it is disparaging to people of Asian descent.  Since 2010, Simon Shiao Tam, the front man for the Asian-American rock band “The Slants,” has been trying to obtain trademark recognition for the name of his band.  The record shows that the band picked the name by thinking of “things that people associate with Asians. Obviously, one of the first things people say is that we have slanted eyes.”  The record of the case confirmed that “slants,” used in the way proposed, would likely be received as a racial slur.

The fact that the registrant wished to re-appropriate an ethnic slur and try to create a positive connotation did not alter the outcome. Nor was the Court troubled that the user’s own race formed part of the background for assessing the objective meaning of the mark in commerce. Both of these jurisprudential choices are consistent with the Federal Circuit’s approach to statutory interpretation, which strives for an objective meaning of trademarks in actual use.  In our view, the private cooptation of illiberal ideas can generate terrific art and might very well help to change social meaning in the long run.  But you don’t need trademark protection to engage in such projects of appropriation; indeed, granting one user legal protection might even stifle others who would like to experiment further with taboo ideas.

In re Tam now makes it two cases on trademark disparagement that the Federal Circuit has ever decided—both have been in the past year and both affirmed the TTAB’s finding of disparagement.  The court obviously felt bound by precedent.  Nevertheless, Judge Moore, the author of the 11-page majority opinion, offered 24 pages of what was styled “additional views," but which read more like a petition for rehearing en banc on the constitutionality of § 2(a) of the Lanham Act.

Though not binding, this last bit by Judge Moore may prove most interesting of all.  The judge offered many reasons for wanting to revisit the Federal Circuit’s position on the constitutionality of § 2(a): its 1981 decision In re McGinley did not cite any authority, its analysis consists of only a few sentences, the decision has been criticized in the intervening years, jurisprudence on the unconstitutional conditions doctrine and the protection accorded commercial speech has since evolved, and the source of the PTO’s funding has shifted from tax payers to user fees.

The judge contends that In re Tam presents an unusually strong case for considering trademarks as protected speech since the applicant intended to use the mark to reclaim Asian stereotypes and to participate in a political and cultural discourse about race as a musical artist.  At oral argument, the judge tried to distinguish this feature of the case from the Redskins case.

But the main thrust of Judge Moore's constitutional challenge to § 2(a) is based on the unconstitutional conditions doctrine, which holds that the government cannot deny access to a government benefit on the basis of the recipients exercise of constitutionally protected speech.

In claiming that the benefits of registration are not just procedural, but are also substantive, Judge Moore states that a disparaging mark “cannot be protected by its owner by virtue of a § 43(a) unfair competition claim” because “§ 43(a) protection is only available for unregistered trademarks that could have qualified for federal registration.” (emphasis in original).  This is a bold claim not exactly supported by the cases she cites.  The Supreme Court’s Taco Cabana decision simply says that “the general principles” under § 2 are “for the most part applicable” in determining whether an unregistered mark is protectable.  That’s right because for the most part, these general principles are common law doctrine codified in the Lanham Act.  No case yet holds that the owner of a disparaging mark would not be able to assert common law rights against an infringer, but in a 2013 decision the Federal Circuit did suggest that an unregistrable common law mark may receive protection under § 43.  As we argued in a previous post, variations in the availability of legal remedies are better understood as procedural changes rather than subsidies of private speech.

By focusing on the benefits of registration, Judge Moore loses sight of the significance of registration.  Although in civil law countries trademark registration generally confers rights, in the US trademark rights are created by using a mark in commerce and developing good will.  Registration is “essentially a recognition of a right already acquired by use.”  At the same time registration is encouraged because it provides notice of rights—hence the benefits that flow from registration.  These benefits, however, are distinguishable from benefits conferred by the government in other unconstitutional conditions cases, which typically involve direct subsidies of speech.  In the case of trademark registration, the government is literally approving of certain trademarks; the symbol of trademark registration—the “R” in a circle—is a statement by the trademark owner that the government has approved, not its business or its goods, but the mark itself.  Such approved trademarks are included in the government’s registry, or list of marks certified by the government.  No other unconstitutional conditions case involves such symbolic acts of endorsement by the government, but instead involve unseen deeds such as exemptions from taxes or import duties.

The limited nature of the denial of registration seems to be lost on Judge Moore.  The PTO’s refusal to register disparaging trademarks does not force the owner of a disparaging mark to relinquish a constitutional right.  The owner can continue to use the mark.  In cases where the Supreme Court has found an unconstitutional condition, the speaker has few realistic options other than to cease engaging in a particular form of speech in order to avail itself of a valuable government benefit.  No such forced choice results from § 2(a).  Because the registration system parallels common law trademark protection, some of which is enshrined in the Lanham Act, the owner of a disparaging mark can continue to engage in its chosen speech and endeavor to have it protected as a common law trademark.

Perhaps worst of all, Judge Moore's application of the presumption against content-based regulations to § 2(a) has no limit.  If all trademarks are constitutionally protected speech and the act of registration is the conferral of a substantive benefit, then when may the PTO make a content-based determination that affects registration without violating the First Amendment?  The Lanham Act also requires the PTO to refuse registration to marks that consists of simulations of state insignia and marks that include the name of a president.  There’s no doubt that these determinations involve trademark owners as speakers and the denial of benefits.  They also require the PTO to evaluate the content of the mark.  Should the constitutionality of these provisions also be revisited?  And what about the denial of registration to merely descriptive marks, deceptive marks, and marks that falsely suggest connections?  Under Judge Moore’s logic, these determinations are as unconstitutional as direct content-based regulations of speech.  Moreover, it is worth noting that none of these kinds of marks would fall within traditionally unprotected categories of speech (e.g., libel, incitement, obscenity).  So applying the First Amendment full bore as Judge Moore proposes would also disable the PTO from barring the registration of these marks as well.

The broader point is that all trademark registration determinations under § 2 are content-based because they all involve an evaluation of the meaning of the mark in the context of its use and analysis of whether it is disparaging, descriptive, deceptive, etc.  Thus, if strict scrutiny is applied to the ban on disparaging or scandalous marks, it is also required in evaluating the constitutionality of all the other trademark restrictions contained in § 2.  If a court were truly serious about apply this presumption, there would be little left of trademark law.

Finally, Judge Moore asserts that trademarks are private speech, not government speech. Judge Moore asserts that when “the government publishes registered trademarks in the Trademark Principal Register, it does so not to communicate a particular message or select a particular viewpoint.”  But it is hard to get around the fact that the Register is a list of marks that the government has approved and that when a trademark owner uses the registered “R” symbol along with its mark, it is using that symbol precisely as a certification that the government has approved its mark.  It is only when the PTO rejects the registration of a mark that its use is purely private.  There are a host of reasons why the government should have the power to distance itself from odious speech and illiberal business practices.  As we argued in a recent Slate article, all of these are compelling features of the federal government’s power to regulate interstate commerce. 

Posted by Howard Wasserman on April 23, 2015 at 09:01 AM in Constitutional thoughts, First Amendment, Intellectual Property | Permalink | Comments (0)

Tuesday, April 14, 2015

The Right to Privacy vs. Freedom of Expression

Most of us are in the phase of the semester where we are discussing defenses, exceptions, and limitations on the areas that are the subject of our courses. Certainly, my trademark class is grappling with cases considering First Amendment limitations on IP rights.

One recent case places the First Amendment as a limitation on the right of privacy. This New York  court considered a photographer's images taken with a telephoto lens aimed inside people's homes.  The plaintiff asserted violation of New York's statutory right of privacy.  According to the opinion, the photographer, Arne Svenson, has exhibited the works and reproduced some images here. 

According to an earlier court opinion, Mr. Svenson did not obtain consent but rather "I carefully shoot from the shadows of my home into theirs." Although some of the images do not show the occupant's faces, some did at least partially. One is a child's face that was alleged to be identifiable. According the plaintiff, the location of their apartment has been made known as well "which Plaintiffs allege compromises the security and safety of the children."

Nonetheless, the Appellate Division affirmed dismissal of the complaint, given that the art works were for expressive purposes protected under the First Amendment. As the court stated, "works of art fall outside the prohibitions of the privacy statute under the newsworthy and public concerns exemption." Further, the Court observed that "the depiction of children, by itself, does not create special circumstances which should make a privacy claim more readily available."  Certainly, in an era of emerging drone use, such cases are likely to arise with more frequency. If you are interested, a full copy of the slip opinion is here.

Posted by Amy Landers on April 14, 2015 at 01:44 PM in Current Affairs, First Amendment | Permalink | Comments (0)

Sunday, April 12, 2015

Teaching citizens to video--and to exercise the First Amendment

This PBS story from Friday discusses the "Video as Evidence" program, begun by the international human-rights organization WITNESS, to teach people how to record video of police and other public government activities. The goal is to train people to document events not only for use on YouTube and in public discussions of police misconduct, but also for effective use in court, which is where any "accountability" must occur through criminal prosecution and civil litigation. Issues include training in how to properly frame and follow images and events, as well as how to ensure authenticity and a proper chain of custody. WITNESS's primary focus is outside the United States, but the idea could and probably should be recreated here.

Of course, if this stupid bill becomes law in Texas, could one argue that the program is actually facilitating unlawful behavior and thus itself without First Amendment protection?

Posted by Howard Wasserman on April 12, 2015 at 10:13 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Thursday, April 09, 2015

Abandoning counter-speech

Update (Friday): According to this story, UM reversed course and planned to show the movie at the originally scheduled time and place on Friday evening; a university official said the decision to cancel was "not consistent with the high value the University of Michigan places on freedom of expression and our respect for the right of students to make their own choices in such matters." The story also reveals that new UM football coach Jim Harbaugh is proud to be an American and does not care if that offends anyone. Glad to hear that, Coach; I was concerned.

Original Post (Thursday):

Ron Collins at CoOp (who has become my go-to person for new First Amendment news) reports on a controversy at the University of Michigan. A university organization, in response to a petition, cancelled a planned screening of Clint Eastwood's American Sniper; in  response to a counter-petition started by a 3L law student, the university moved the screening to an alternate location. According to the Daily Caller, the university will show Paddington Bear instead. Collins quote Floyd Abrams as saying "Surely, this is the best evidence yet that a speech-destroying storm is sweeping across American campuses. The students who seek to ban speech have much to learn but a university that yields to their demands can hardly be trusted to teach them.”

The First Amendment's preferred response, Justice Brandeis would tell is, is counter-speech. And the objecting students could have engaged in all manner of it here--protest outside or around the building, take to various fora real and virtual fora to urge people not to attend, show a different, contrary movie at the same time and in a similar location. But that never seems to enter the picture; the objector's move is to jump directly to silencing the message to which they object.

Why?

One possibility is that the harm caused by the speech being heard is simply too great--the harm comes with the film and cannot be alleviated by alternative messages. This view is bound-up with unique concerns about identity, disadvantaged groups, and social power imbalances. This is not your grandfather's censorship of socialism and dirty movies--the sorts of speech that progressives sought to protect once upon a time. This is about racism and hate crimes and its utterance cannot be tolerated.* This is the default (and likely?) explanation that so worries Abrams and others (including me) about the state of the First Amendment, especially on campus.

* Drawing on a point from some comments to this post: The First Amendment does not distinguish between a racist epithet or rant and a serious, if ugly and even racist, political message--both are protected. But that may be necessary because opponents of speech do not distinguish when they call for silencing--American Sniper is not qualitatively different than a long racist rant that promotes racist rhetoric "contributes" to hate crimes. In other words, American Sniper is the same as the SAE chant is the same as the stupid woman at South Carolina.

A second possibility is that counter-speech is hard. It requires people to get out there, organize, protest, etc. Obviously these students worked hard to create the groundswell necessary for the university to cave, sending out messages and garnering support. But organizing new events and protests requires another level of commitment. Plus, your side may lose with counter-speech--you may not convince anyone to come over to your position and more people may choose to see the movie anyway. The only sure way to win is not to let the other side be heard.

Finally, a third possibility shifts the blame back to the university. Acting on concerns for safety, convenience, and "order," universities (and governments generally) make counter-speech incredibly difficult. Universities demand permits, push many protests into "free speech zones," impose restrictions on the numbers of protesters and where they can be and when, and generally create all manner of time, place, and manner limitations designed to ensure that public protest not last and that it not inconvenience or annoy anyone else. The result is to deter counter-speech--it simply becomes too difficult to do it and not worth the candle. (Note that I am speaking generally here--I do not know anything about the specifics of UM's protest-and-demonstration policies). So I will reapply Abrams' criticism of universities: By limiting the type of counter-speech in which protesting students might engage, the university itself leaves protesting students with no option but to call for silencing.

Posted by Howard Wasserman on April 9, 2015 at 09:31 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Monday, April 06, 2015

University of South Carolina joins the mob

There may be more to this story than is reported here about the University of South Carolina suspending a student for writing a racial slur on a dry-erase board in a study room (as part of a list of complaints about the school). Based on the facts we have, this move is even more egregious than the expulsions at Oklahoma. The Fourth Circuit does not apply Tinker to universities; there is no remote possibility of this being a true threat, fighting words, incitement, or otherwise unprotected speech; and there is no suggestion that using the dry-erase boards in a study room is against university policies (so this cannot be likened to defacing university property). The school simply insists that "racism and incivility" are not tolerated and that the honor code requires everyone to "respect the dignity of all persons" and to "discourage bigotry." Those are all great ideas. But an institution that is subject to the First Amendment cannot further those values by removing from its community anyone who does not share them.

Again, however, if the student is not inclined to sue, the university's power grows.

Posted by Howard Wasserman on April 6, 2015 at 04:01 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (20)

Thursday, April 02, 2015

Where have you gone, Mary Beth Tinker?

Recent incidents of universities expelling students for racist or offensive speech have included an interesting feature--none of the students seem inclined to sue or otherwise contest the punishments as violating the First Amendment. The two guys from Oklahoma have been on a Regret Tour, seemingly apologizing to every African-American they can find (including random Oklahoma legislators). A story described one of them as having "withdrawn" from OU (interesting language given that OU President David Boren made it very clear that he had expelled them). The University of Maryland went after one student for sending racist emails and the student left, at least for a semester, by "mutual consent." This despite the fact that most commentators believe, doctrinally at least, that expulsion for the speech in these cases violates the First Amendment.

One explanation is that the social norms against racist and other offensive speech have so taken hold that people "caught" engaging in such expression do not want to own or defend it in public. Given the social reproach that they are subject to, ordinary people (as opposed to truly hateful sociopaths such as Fred Phelps) no longer want to fight for the right to say what they did or for the underlying principle that offensive speech is protected.  They instead run and hide to let the storm blow over. From a social standpoint, it perhaps is good for norms of equality to take hold.

From a legal standpoint, however, it is unfortunate. Legal rights are lost if not exercised and defended or if those who violate those rights are not called to account. In this context, that requires the speaker to challenge the punishment in court. Moreover, the reluctance to sue increases the power of university officials to impose constitutionally suspect punishment. As one emailer put it, a university president can impose any punishment he wants, "effectively daring the frat members to call his or her bluff."

I have no evidence for this notion, but I wonder if the students are not essentially settling--they agree not to sue, they step away from school for a semester or two, then they are allowed to return once things have quieted down.

Posted by Howard Wasserman on April 2, 2015 at 04:39 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (4)

Wednesday, April 01, 2015

Ongoing conflicts over campus speech

Short story in the Chronicle of Higher Ed on various new controversies over offensive speech on college campuses, including at Oklahoma, Penn State, Maryland, Bucknell, and Mary Washington.

I would suggest the last two paragraphs, involving three students expelled for using racist epithets on the campus radio station, captures the disconnect and the inherent contradcition (yes, Bucknell is private and can do whatever it wants as a First Amendment matter, but it illustrates the prevailing attitude towards expression):

In an interview Tuesday, Bravman, Bucknell’s president, said that he and his university strongly support free speech and due process. He would not comment on the context of the language, but said that no matter the context, the three students crossed a line.

“There’s no question about that,” Bravman said. “This was hate speech. We own the station and the equipment, and the students were acting as agents of the university. They violated our community standards, and that’s really what this comes down to.”

Posted by Howard Wasserman on April 1, 2015 at 04:06 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (14)

Wednesday, March 25, 2015

If not Holmes, then Kennedy?

Ron Collins discusses a new book by First Amendment scholar Burt Neuborne, Madison's Music: On Reading the First Amendment. NYU Law hosted a program on the book last week, featuring Justice Sotomayor. In the book, Neuborne refers to Justice Kennedy as "the most important First Amendment Judge that has ever sat on the Supreme Court."

When his book The Great Dissent was published in 2013, Thomas Healy had an exchange with Mike Dorf in which he wondered who might have led the charge on free speech had Holmes not changed his mind in Abrams; Healy ran through a number of names but found all lacking. In my new article, I argue that Justice Brennan (who Healy did not mention in his blog post) would have been the justice to take that lead, discussing the various areas in which Brennan set out (or tried to set out) a uniquely speech-protective First Amendment vision and often succeeded in pulling majorities with him.

Neuborne's book and his comments at NYU present Kennedy as another answer to that question. In the paper, I refer to Kennedy as Brennan's "speech-protective heir," particularly once he had been on the Court for a few years. So could/would Kennedy have been that First Amendment leader without Holmes or Brennan before him (put to one side the impossibility of the counter-factual)? In many areas--notably corporate speech and campaign finance--Kennedy outstrips Brennan in protecting expression. Quantitative studies (one by Eugene Volokh and one by Ashutosh Bhagwat) reveal Kennedy's voting record to overwhelmingly favor free-speech claimants.

 I did not think of Kennedy when I was writing the paper. Partly this is because the paper focuses on the First Amendment connections between Holmes and Brennan. Partly this is because Kennedy remains on the Court, so it is more difficult to assess him within the bigger historic picture.

More problematically, Kennedy's First Amendment near-absolutism gets lost in the unfortunately simplistic liberal/conservative rhetoric used to describe the Court, which overlaps with the newish trend that protection of free speech is not the automatically liberal position (as it generally was in Brennan's day). And there is the even-more-simplistic view of Kennedy as the swing vote who tips the balance in every case and at whom the attorneys all direct their arguments (this notion is captured in the line, which I have heard over and over from a practicing attorney, that "you don't count to 5, you count to Kennedy"). Whatever the truth of that view in many constitutional cases, it simply is not true in First Amendment cases. Kennedy is a sure thing for the free-speech claimant; lawyers need to worry about people like Justice Breyer.

Posted by Howard Wasserman on March 25, 2015 at 05:50 PM in Constitutional thoughts, First Amendment, Law and Politics | Permalink | Comments (1)

Monday, March 23, 2015

A Texas bill that is both stupid and unconstitutional

There are stupid laws, there are unconstitutional laws, and then there is this bill introduced in the Texas House by Rep. Jason Villalba. The bill would define "interruption,disruption, impediment, or interference" with police (already a crime) to include a person "filming, recording, photographing, or documenting the officer within 25 feet of the officer," 100 feet if the person is carrying a handgun. The bill includes an exception for mainstream news media (defined in the bill). Breitbart Texas has a story, including reactions from various advocacy groups and Rep. Villalba's efforts to defend his creation on Twitter by insisting that it protects police without prohibiting recording or efforts to hold police accountable.

Assuming that recording public events is protected First Amendment activity (the Fifth Circuit has yet to decide the issue), this law would be in an immense amount of trouble. Where to begin?

It is not clear how the simple act of filming, recording, or documenting from 22 feet away, without more, can constitute "interruption, disruption, impediment, or interference." Certainly, a general prohibition on interference could be applied to expressive activity and need only survive intermediate scrutiny under O'Brien. But defining expressive activity as interference raises different constitutional issues. The only interference/impediment from recording alone is that the act of being recorded will cause the officer to change his behavior lest he be caught on camera doing something wrong. If that is the goal, the law would have to satisfy strict scrutiny.

The bill treats expressive conduct differently than non-expressive conduct that implicates the same government concerns. A person who is not "filming, recording, photographing, or documenting" can be within the 25-foot mark, even if he has a handgun. In other words, where I can go depends on whether I am engaging in expressive activity. But if being within 25 feet of the officer interferes, it interferes whether the person is recording or just watching the events. A 25-foot buffer zone around police officers probably might be permissible; limiting that buffer zone only to those engaged in expressive activity is not. That makes the law underinclusive. And worse, it is underinclusive in a way that singles out expressive over non-expressive conduct.

The differential treatment of the mainstream media from non-traditional media and individuals cannot survive strict scrutiny (I doubt it could survive rational basis review), which applies when a law regulates based on speaker identity. Again, no way it survives strict scrutiny, because there is no reason that MSM recording is different from individual or blogger recording in terms of the government interest.

Finally, the real effect of this bill is less on bystander witnesses than on suspects or those in immediate contact with suspects. People directly involved in confrontations with police--themselves or their friends--will not be permitted to record when the police initiate contact. In other words, no Eric Garner video. The cynic in me says that is Villalba really is trying to do.

This has no chance of surviving constitutional scrutiny. It should have little chance of passing. The question is how much this guy wants to stick to his guns. The interesting question is, based on the Breitbart piece, it is Republicans/Libertarians/conservatives who are pushing back on this.

Posted by Howard Wasserman on March 23, 2015 at 06:15 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (2)

The First Amendment and the Redskins trademark, Part I: Government speech

The following post is by Robert L. Tsai and Christine Haight Farley (both of American); it is the first several guest posts on the Washington Professional Football Team trademark case. It is cross-posted at the Sports Law Blog

The ACLU recently filed an amicus brief in the Washington Redskins trademark case, arguing that the Patent and Trademark Office’s (PTO) cancellation of Redskins registrations constitutes viewpoint discrimination contrary to the First Amendment, and urging the federal court to strike down those portions of Section 2(a) of the Lanham Act that prohibit the registration of “immoral,” “scandalous,” or “disparage[ing]” marks.  We are deeply concerned with the ACLU’s position.  Its proposal to thrust First Amendment law into an area of commercial regulation in unprecedented ways would wreak havoc with trademark law’s careful balance of concerns for property rights, economic exchange, and consumer protection.  We believe that the ACLU’s fundamental misunderstanding of trademark law has caused it to misapply First Amendment doctrine. 

In this first post, we wish to focus on the ACLU’s invocation of two First Amendment doctrines: viewpoint discrimination and unconstitutional conditions (we leave for a separate post whether the commercial speech doctrine might be appropriate).  The ACLU’s position erroneously elides the various forms of government regulation and their contexts, treating trademark law like criminal law, municipal ordinances dealing with protests, laws creating public fora, and public subsidies.  But the strongest First Amendment doctrines designed to ensure robust public debate simply don’t map on to trademark regulation without creating a major upheaval in trademark law.  First Amendment doctrine requires strict scrutiny whenever there is a direct, content-based regulation of private speech.  The federal trademark registry, however, does not operate like a direct regulation of private speech, nor does it create a forum for the expression of private speech.  

Congress’s power to regulate trademarks flows from, and is constrained by its constitutional authority over interstate commerce.  Federal registration of a mark confers certain benefits (e.g., registration is treated as prima facie evidence of validity and ownership of a mark, gives a nationwide priority over subsequent users, and offers access to certain remedies), but it does not create rights. These advantages are more procedural in nature than substantive, closer to internal court rules than criminal laws, permit ordinances, or public subsidies.  Trademark rights are instead established by common law from the actual commercial use of the mark; these rights can be asserted in federal court without a registration.  It is in this crucial sense that the Lanham Act does not directly regulate expression as such—certainly not in the same way that a criminal law preventing offensive speech, a regulation banning parades without a permit, or even laws that subsidize private speech do.  Section 2(a) does not prohibit the utterance of the word “Redskins” or attach any conditions on anyone’s use of that term.

This provision simply refuses to confer the benefits of registration on the Washington football team.  The team would still retain the right to assert itself as the first and exclusive user of the term for commercial purposes under federal law.  Consequently, the provision offers the Native American challengers in this case only the possibility of a symbolic victory—there would be no need for the team to change its name as it may still use and enforce the mark.  Section 2(a) neither chills the free expression of ideas nor inhibits robust public debate.

Unable to point to a public forum or a direct inhibition of expression, the ACLU contends that the PTO registry imposes an unconstitutional condition on speech.  In support of this proposition, the ACLU cites Legal Services Corporation v. Velazquez, where the Supreme Court struck down a federal law that prevented publicly-funded legal services lawyers from challenging “existing law.”  As Robert has discussed elsewhere, this restriction of subsidized advocacy was tantamount to a ban on anti-government speech.  But there is nowhere near the same threat to freedom of expression entailed by Section 2(a) of the Lanham Act—it is not even in the same ballpark.  After cancellation of its registration, the Washington football team remains just as free to use the Redskins marks, in commerce or political discourse.  Moreover, the fact that registration is cancelled in no way inhibits the mark user’s legally-oriented expression or distorts the normal operations of the legal system, two findings central to the Velazquez ruling.  Section 2(a) does not restrict what lawyers can say in court and does not even prevent the mark’s owner from relying on statutory and common law trademark doctrines.  It imposes no condition whatsoever on non-commercial expression.  As Adam Cox and Adam Samaha have shown, truly unconstitutional conditions are rare, and virtually every constitutional issue can be reframed as an allegedly unconstitutional condition (as the ACLU has done).  It is a mistake to do that here.

Closer examination of the idea of viewpoint discrimination shows that it doesn’t really capture how Section 2(a) of the Lanham Act actually works.  That concept has been invoked in cases where there is a serious fear of chilling of political speech, i.e., when one side in a debate has to fight with an arm tied behind her back.  But there’s no serious concern that anyone’s ideological message is hampered or distorted by the Lanham Act.

Section 2(a) does not turn on a speaker’s actual perspective on an issue.  It instead permits an objective determination that a mark, regardless of the owner’s viewpoint, will be perceived as disparaging by the referenced group when used in commerce.  Someone who wishes to coopt a disparaging term for positive ends may be barred from registry just as someone whose intended use is to disparage.  Thus, Section 2(a) operates without regard to the ideological intention of a speaker.  For example, the PTO refused the registration of the mark “The Slants” finding it was disparaging to Asian Americans despite the fact that the applicant was a band whose members are Asian and who intended to take on stereotypes about Asians.  The applicant’s viewpoint was irrelevant.

Moreover, enforcement of Section 2(a) does not prevent the utterance of noncommercial pro-Redskins speech, just as it does not prohibit the utterance of non-commercial anti-Redskins speech.  Decisions like Rosenberger v. Rectors of Virginia and R.A.V. v. City of St. Paul are simply inapposite.

We think that the best analogue for this type of government regulation is government speech.  Under that body of caselaw, the PTO registry constitutes “government speech” rather than regulation of private speech.  The doctrine permits government-wide latitude to design its own programs and express its own views, consistent with Congress’s mix of commercial and ideological goals.  Reliance on this doctrine would recognize that the PTO registry simply is not a forum created for the exchange of private ideas; rather, it is a tool to facilitate Congress’s goals of regulating interstate commerce and protecting a diverse population of consumers from business practices that foster racial discrimination and stereotyping.  These core programmatic goals place Section 2(a) well within the reasoning of two government-speech rulings by the Supreme Court: Rust v. Sullivan, where Congress barred government-funded doctors from advising about the availability of abortion, and FCC v. Pacifica Foundation, which permitted Congress to protect listeners from “obscene, indecent, or profane” broadcasts.  

Accepting the ACLU’s invitation to apply First Amendment law maximally to the PTO registry would improperly convert the registry into a free speech forum.  It would force the PTO to register all manner of marks, interfering with the government’s delicate balance of regulatory objectives.

A ruling in this case against the football team does express the government’s belief, after careful fact finding, that the term “Redskins,” as used by the Washington football team in commerce, is disparaging to an entire group of people.  Under the government speech doctrine, Congress is free to express the view that racially-inflected commerce is wrong, that certain ideas harm consumers in a pluralistic marketplace, and that government sanction of the trademark’s usage might inhibit commercial activity.  The PTO, relying on Section 2(a), has expressed that view here, leaving private actors at liberty to agree or disagree.

Finally, consider what actually happens when the PTO refuses to register a mark on the ground that it is “disparaging.”  It means that the mark owner cannot claim that the federal government has endorsed or supported that expression for commercial reasons.  But he or she can continue to use it in public debate.  Moreover, to the extent that the benefits of registration hinder the mark owner from excluding others from using the term in commercial activity, the absence of a registration guarantees a more robust public debate.  That result seems far more consistent with ensuring wide-open conversation on matters of public importance than a federal court ruling invalidating this portion of Section 2(a).

Posted by Howard Wasserman on March 23, 2015 at 09:44 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Wednesday, March 18, 2015

Floyd Abrams responds

In this February post, I posited that one reason the ACLU's 2015 Workplan had no First Amendment issues among its 11 "major civil liberties battles" was that, in the ACLU's view, there were no major systematic threats to free speech. In a speech at Temple Law School on Monday, Floyd Abrams responded, identifying two such areas--campus speech and the political left's abandonment of the First Amendment.

First, I am obviously flattered to be on his radar, especially for a blog post. Second, I fear that I was not clear enough in my original post that I was not endorsing the "we won" position, but only proferring one explanation/justification that the ACLU might have been thinking about; on re-reading the post, I do not think that came across as well as it should have or as well as I would have liked.

Third, I agree as to both areas Abrams identifies as systematic problems (I mentioned campus speech codes as one problem area in my post--and that was before Oklahoma and UCLA). Note that they sort of overlap, to the extent many on-campus censorship efforts are directed by the left against right-leaning speech.* And to bring it back to the ACLU Workplan: They share the common feature that the national ACLU and local affiliates may be quite at odds internally and with one another over both issues. And neither are issues that the ACLU is going to use to spearhead its fundraising efforts.

    * Here is an Intelligence Squared debate on that very overlap.

Posted by Howard Wasserman on March 18, 2015 at 02:06 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (16)

Tuesday, March 17, 2015

Scope of injunctions

A recurring problem in the marriage-equality litigation--not only in Alabama, although it has obviously reared its head there--is confusion about the scope of a civil rights injunction and declaratory judgment. The constant refrain from me and many others is that any injunction applies only as to the named defendant(s) and as to the named plaintiffs. The injunction--as opposed to the court's reasoning and the power of precedent--does not legally compel anyone else to do anything or for the defendant to do anything as to any person not named as a plaintiff. But there has been pushback (particularly in a Con Law prof listserv conversation), particularly over the lack of SCOTUS precedent explicitly establishing this point.

I want to suggest that the answer lies in two Younger cases--Steffel v. Thompson and Doran v. Salem Inn.

In both cases, multiple people wanted to engage in particular conduct but were prohibited from doing so by a state or local law--handbilling outside a shopping center in Steffel, perating nude-dancing establishments in Doran--that arguably violated the First Amendment. Also in both cases, one person was a defendant in an ongoing state criminal prosecution. And in both cases, SCOTUS held that Younger did not bar the action by those people who were not parties to those ongoing state proceedings. The key was that the federal action (and resulting injunction or declaratory judgment) would not interfere with any ongoing state proceeding, since the federal plaintiffs were not involved in any such proceedings, so there were no comity problems.

But implicit in both decisions is that the federal injunction also would not interfere with the pending proceeding against a different person, even when instituted by the same government official. In other words, enjoining Doran from prosecuting Salem Inn did not prohibit him from continuing to prosecute M&L (the bar that had violated the ordinance and been issued a summons) and enjoining Thompson from prosecuting Steffel did not prohibit him from continuing to prosecute Steffel's friend (who already had been charged with criminal trespass). This must mean that the injunction binds only the named defendant as to the named plaintiff. At most, the federal court's reasoning might convince the official to drop the state case. But he would not have been "ignoring" or "defying" the federal court to continue with the state proceeding against someone other than the federal plaintiff because he carried no legal obligation as to any other person. If enjoining Doran as to Salem also would have enjoined him as to M&L, then the Younger analysis would have changed, because the injunction as to Salem would have interfered with the ongoing state proceeding.

We can see the parallel to the federal litigation in Alabama. A federal court has enjoined Probate Judge Don Davis from enforcing the state's SSM ban as to the four or five couples in Strawser, just as the federal court enjoined Doran not to enforce the nude-dancing ordinance against Salem. But that injunction cannot prohibit Davis from enforcing the ban as to any other non-party couple (by not granting them a license), just as the injunction could not prohibit Doran from enforcing the ordinance against M&L, which no longer was a party to the federal action.

Again, SCOTUS did not speak about the scope of injunctions in either Doran or Steffel. But it clearly understood injunctions in this way. And that, it seems to me, resolves at least this part of the shouting in Alabama.

Posted by Howard Wasserman on March 17, 2015 at 09:10 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (6)

Monday, March 16, 2015

Defending the barely defensible

This weekend, I published two guest commentaries for JURIST defending some reprehensible folks. First, I argue that Oklahoma's expulsion of the SAE members over the racist chant on the bus probably violates the First Amendment. Second, I try to bring some procedural sanity to the discussion of same-sex marriage in Alabama (this puts together everything I have been writing here for the past month or so).

Posted by Howard Wasserman on March 16, 2015 at 09:31 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Thursday, March 12, 2015

Maybe the ACLU has given up on free speech

Via Ron Collins at CoOp, here are two statements from the leadership of the Oklahoma ACLU, applauding the president's decision to punish the students, but calling on him to ensure that the students receive due process. No mention of the First Amendment.

Posted by Howard Wasserman on March 12, 2015 at 07:33 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (9)

Tuesday, March 10, 2015

First Amendment suspended at Oklahoma?

The two Oklahoma University students leading the racist chant aboard an SAE party bus have been expelled, according to a statement by the university's president, because they created a hostile learning environment for others. The president emphasized that the speech "impacted the entire university community as it was also distributed on social media."

I have no idea if the students will sue, as they may just want to crawl back under their rock. But if they do go to court, no way the expulsion can withstand First Amendment scrutiny, right? "Hostile learning environment" is not a recognized category of unprotected speech, unless you can squeeze it into some pre-existing category such as fighting words, true threats, or incitement and this plainly is neither.

Wow, between Roy Moore and these schmucks, I'm on a roll this month.

Update: Eugene Volokh weighs in, reaching the same conclusion that this expulsion is improper. He focuses on several points, including that racist speech remains fully protected (outside of threats or fighting words), as do references to violence that are not immediately threatening.

Posted by Howard Wasserman on March 10, 2015 at 02:24 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (9)

Wednesday, March 04, 2015

ACLU responds to Ron Collins

So, it appears I was sort-of right. As ACLU Exec Director Anthony Romero responds to Ron Collins, the organizations Workplan excluded free expression because other civil liberties issues involve bigger, broader, more systematic challenges involving more coordinated efforts. Free expression involves one-off individual cases into which both the national office and, especially, local affiliates regularly get involved, but which are less in need of coordinated national efforts. So it is not that the ACLU has declared victory, but that the nature of challenges to free expression are different than the challenges in other civil liberties areas.

Is this a satisfying explanation?

Update: As if to prove its point that it still loves the First Amendment and is still willing to defend the liberty of loathsome speakers to say loathsome things: The ACLU filed an amicus in the dispute over the Washington NFL Team nickname, arguing that the Lanham Act limitation on "disparaging" trademarks is viewpoint discriminatory and violates the First Amendment. (H/T: Ron, who heard directly from ACLU Exec Director Anthony Romero).

Posted by Howard Wasserman on March 4, 2015 at 06:33 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (0)

Thursday, February 26, 2015

Declaring victory?

At CoOp, Ron Collins discusses the ACLU's new 2015 Workplan: An Urgent Plan to Protect Our Rights, which listed 11 "major civil liberties battles" that the organization plans to focus on--none of which have anything directly to do with the freedom of speech or of the press. Ron wonders why, given the ACLU's history and founding purpose. He emailed ACLU Executive Director Anthony Romero about this and was told Romero intends to respond.

I look forward to hearing Collins report on Romero's response. But let me offer one possible (if not entirely accurate) answer: We won. There are no "major civil liberties battles" to be fought or won with respect to the freedom of speech. Yes, we still have situations in which government passes laws or does other things that violate the First Amendment and those must be fought in court. But the First Amendment claimant wins most of those cases and much of the doctrine seems pretty stable at this point; it simply is a matter of having to litigate. Importantly, these do not (or at least do not appear to) reflect a systematic assault on free speech rights across wide areas of the country on a particular matter. There is no overwhelmingly adverse legal precedent that must be changed (compare surveillance), no overwhelming series of incidents highlighting the problems (compare police misconduct), and no systematic assault on a right by political branches or other majoritiarian institutions (compare Hobby Lobby; reproductive rights; voter ID).

The only "major battle" arguably to be fought on the First Amendment is over campaign finance. But the ACLU is famously divided over that issue, with past leaders fighting among themselves and divisions within the current leadership. The rules governing public protest have evolved to overvalue security at the expense of the right to assemble and speak in public spaces, especially at singularly important events (political conventions, meetings, etc.). But there are so many variables at work there, it is hard to see how to create a battle plan on that.

That's it. Police still seem unsure about what to do with people filming them in public, but that is not because the doctrine is not clear. The student-speech doctrine is a horror show, but that is not an issue on which you hinge your fundraising. Campus speech codes are a pervasive and systematic problem (but see Eric Posner), but the ACLU may be divided on that issue as well (since much of the targeted speech is deemed racist, sexist, etc.). And anyway, other organizations (notably FIRE) have made this their specialty. Not every challenged trademark involves a racial slur. Am I missing something else?

Note that I do not mean to suggest that we won and that there are, in fact, no more systematic threats to free expression. Yes, I feel a lot better about my right to burn a flag, defame the President, or watch "Fifty Shades of Grey" than I do about my daughter's future right to control her body. But it would be a mistake for the ACLU (or anyone else) to declare victory on free speech and drop the mic.

Posted by Howard Wasserman on February 26, 2015 at 09:31 AM in First Amendment, Howard Wasserman | Permalink | Comments (12)

Friday, February 20, 2015

Holmes and Brennan

My new article, Holmes and Brennan, is now on SSRN. This is an article-length joint book review of two terrific legal biographies--Thomas Healy's The Great Dissent and Lee Levine and Stephen Wermiel's The Progeny. I use the books explore the connections between Abrams and Sullivan as First Amendment landmarks and between the justices who authored them and who are widely regarded as two leaders in the creation of a speech-protective First Amendment vision.

The abstract is after the jump.

This article-length book review jointly examines two legal biographies of two landmark First Amendment decisions and the justices who produced them. In The Great Dissent (Henry Holt and Co. 2013), Thomas Healy explores Oliver Wendell Holmes’s dissent in Abrams v. United States (1919), which arguably laid the cornerstone for modern American free speech jurisprudence. In The Progeny (ABA 2014), Stephen Wermiel and Lee Levine explore William J. Brennan’s majority opinion in New York Times v. Sullivan (1964) and the development and evolution of its progeny over Brennan’s remaining twenty-five years on the Court. The review then explores three ideas: 1) the connections and intersections between these watershed opinions and their revered authors, including how New York Times and its progeny brought to fruit the First Amendment seeds that Holmes planted in Abrams; 2) three recent Supreme Court decisions that show how deeply both cases are engrained into the First Amendment fabric; and 3) how Brennan took the speech-protective lead in many other areas of First Amendment jurisprudence.

Posted by Howard Wasserman on February 20, 2015 at 09:31 AM in Article Spotlight, First Amendment, Howard Wasserman | Permalink | Comments (0)

Wednesday, February 18, 2015

Collins on Terrorist's Veto

Great post from Ron Collins at CoOp on the need for democratic society's to stand firm in the face of the terrorist veto, which he calls the "savage cousin of the heckler's veto."

Posted by Howard Wasserman on February 18, 2015 at 09:31 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (1)

Monday, February 09, 2015

Measels--An Update and Some Constitutional Issues

So things are moving fast on the Measles front.  Today I’m going to do a quick overview of mandatory vaccination for childhood disease and later this week what it tells us about our efforts to prepare for a bioterrorism event (spoiler, nothing good).

 The measles outbreak has spread now to 17 states and the District of Columbia.     And things are worse than they seem. The current “outbreak” (the number of cases that can be traced back to the original Disneyland exposure) signals how many people in the U.S. lack immunity not just to measles, but most likely to the other two deadly diseases which the MMR vaccine protects against—Mumps and Rubella (German Measles).  For an overview of the damage done by Andrew Wakefield’s now discredited article see here.  See how Megyn Kelly explains it here.  Last year I gathered some resources specific to young adults, and they are here.

 Rubella poses a serious risk to developing fetuses.   According to the CDC A  pregnant woman has “at least a 20% chance of damage to the fetus if….infected early in pregnancy.”  This damage is called CRS-congenital rubella syndrome.  Warning-you may want to take my word that this potential damage is serious rather than read this very descriptive CDC report .  Mumps is also quite serious.  Again a warning, it may be enough to know that the virus causes swelling in various body parts and can be a contributing factor to infertility or low fertility in a small but real percentage of men who become infected. 

Moreover, it seems unlikely that MMR is the only vaccine these children lack.  They are also at risk for polio, diphtheria, tetanus, whooping cough, chickenpox, hepatitis B(and no, it’s not just a sexually transmitted disease),meningococcal disease , and something really unpleasant for which there is now a vaccine—rotavirus.  Here’s the list.

The public focus has turned very quickly to law and ending  vaccination exemptions, see here and here, —so these are some resources if this comes up.   Top legal experts like Professor Lawrence O. Gostin are making clear, there is no Constitutional requirement to exempt anyone from mandatory vaccination in the face of a credible threat to the public’s health. The Supreme Court in held Jacobson v. Massachusetts that the individual states have full authority to pass mandatory vaccination laws and that they are not obligated to give exemptions for reasons of philosophy or preference.  For more background on the Constitutional issues see Prof. Parmet here, here, and here and  Professor Edward P. Richards. The situation is a closer call when it comes to religion, but not much.  As Justice Ginsberg points out in her dissenting opinion in Burwell v. Hobby Lobby, “Religious objections to immunization programs are not hypothetical.”  134 S.Ct. 2751, 2805, n. 31 (2014).  And in terms of an adult’s right to claim a religious exemption from medical care for a minor, the law is if anything clearer.  Even when making a “martyr” of oneself doesn’t pose a threat to others, a state still has the power to intervene when the religious belief is claimed on behalf of a minorHere’s a helpful overview by the Congressional Research Service about vaccination laws in the US and here's one that looks at laws overseas. 

You may be interested to know that the CDC is tracing several outbreaks at the moment including Listeria monocytogenes from caramel apples and sprouts

Read Professor Edward Richards’ article or this one by Profs Mariner, Parmet and Annas,  if you want to get ahead.  go here if you want to get ahead on the bioterrorism via infectious disease.

Posted by Jennifer Bard on February 9, 2015 at 05:07 PM in Constitutional thoughts, Current Affairs, First Amendment, Religion | Permalink | Comments (0)

Monday, February 02, 2015

Cameras at SCOTUS, again

Lots of new stuff on cameras in SCOTUS. Dahlia Lithwick's Amicus podcast discusses them this week, interviewing Sonja West (Georgia) and RonNell Andersen Jones (BYU), who together do a great job pretty much destroying the anti-cameras arguments. The only thing they did not mention was what I think is the key response to the "people will only hear snippets" argument--people already only hear snippets, but now they read the text and hear it in Nina Totenberg's voice, rather than in Scalia's or Kagan's. John Oliver pretty well demonstrated this in his Supreme Court Dogs segment (after the jump).

Second, Justice Kagan did a Q&A appearance at University of Chicago last weekend, in which she admitted to being "very conflicted" about the issue. The same article indicates that Justice Sotomayor is hardening her position against cameras (despite saying in her confirmation hearing that she had "positive experiences" with cameras while a lower-court judge).

Kagan being "conflicted" about this will not  move the needle at all, for a reason that West and Jones discuss in their Amicus interview--the collegiality norms on the Court mean that, as long as one Justice remains strongly opposed to cameras, the rest of the Justices are never going to push the issue.

 

Posted by Howard Wasserman on February 2, 2015 at 04:38 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Measles!

First, I am delighted to be back on Prawfblawgs and want to thank Howard and the team very much for coordinating this.  It’s wonderful to see how what Dan started continues to grow and thrive.

Second, in thinking about how to make best use of my time I’ve decided to focus on public health law--to shed some light on the ever-present conflict between an individual's right to manage her own health and the government (state and federal) ability to interfere.

 As everyone knows, we in the United States are in the middle of an outbreak of measles that started when two un-vaccinated children who had been exposed to measles visited Disneyland.   My focus will be on legal issues, but lets start with an overview.  As of today, there are 102 cases reported in 14 states-anyone interested in tracking the outbreak can so here.  Measles is that “worst case scenario” virus that Ebola wasn’t—it is highly contagious, spreads through the air, can live a long time on surfaces, and is infectious well before people feel sick enough to stay at home.  This is a very helpful graphic.  In 2000 measles was “declared eliminated in the United States” because, for an entire calendar year, there had not been a case of one person catching measles from another in the United States.   But measles is nowhere near eliminated globally and we haven't had a year like 1999 in a long time.   Globally,  400 (mostly) children die of measles every day, 16 die every hour.   Unfortunately, “globally” does not, in measles’s case, mean remote areas of the planet, Europe, India the Philippines and Vietnam—are all seeing increases in measles cases.  

Also, over the past 5 years, an increasing number of people (mostly college students) have caught  measles and mumps (and both) without the infectot or the infectee leaving their U.S.  college campus.

 The good news about measles is that there is a highly effective, widely available vaccine that fully protects 97 out of every 100 people vaccinated.  It’s a “threefer” in that the vaccine provides immunity from not just Measles but two other very serious viruses, Rubella (German measles) and Mumps.

 Like most vaccines, however, it can’t be given to infants younger than six months old and in the absence of an immediate threat, usually isn’t given until a child is twelve months old.  There are also counter-indications (more about them later) about who shouldn’t get the vaccine.  Finally, people on chemotherapy or who have had bone marrow transplants lose whatever immunity they had before.   Without doing the math that means at any one time, even if every person in the United States eligible to vaccinated had one, many people would still be susceptible to infection.  And of course the point of this post on a law site, is that far from everyone eligible to be vaccinated has taken advantage of the opportunity.

 

The current controversy is a great teachable moment for any law school class considering the balance between the rights of an individual and that of the state.    Over the next month, I will be diving deeper into this area of the law to examine the parameters of state authority under the Tenth Amendment and then the different aspects of federal power that create the parameters of governmental authority to prevent, and control outbreaks through public health measures like mandatory vaccination, treatment, quarantine and isolation.  Spoiler alert—neither sincerely held religious belief nor autonomy to raise one’s children have prevailed against a state’s interest in requiring vaccination for attending public school.

To be continued.

Posted by Jennifer Bard on February 2, 2015 at 03:10 PM in Constitutional thoughts, Current Affairs, First Amendment, International Law, Law and Politics, Religion, Science, Teaching Law | Permalink | Comments (0)

Wednesday, December 31, 2014

A shandeh fer der politsey

There is a Yiddish phrase, "a shonder shandeh* fer der goyem," which colloquially means that when a Jew misbehaves, it confirms all the worst beliefs that the non-Jewish world has about the Jewish people, and thus is "bad for the Jews." The title of this post is a riff (not linguistically quite accurate, admittedly, but it sounds good when you can bring the Yiddish) on that. One theme to emerge from recent controversies over police abuses is that the public position of the police is to not experience or aknowledge that feeling of shame when one of their own does something wrong. The "thin blue line" remains forever unified and will not criticize even the worst behavior; there is no public sense that good cops do (or should) despise cops who do wrong.

(*) Several readers questioned my original transliteration; in deference, I have changed it to the more common one.

And that has further manifested in a sense that any criticism of even a misbhaving cop is an attack on all cops; any failure to support all cops is necessarily anti-cop; any criticism of some police or police tactics is necessarily anti-cop; and any suggestion that systemic problems affect police-public relations (especially as to African-Americans) and that the police are in any way responsible for those problems is necessarily anti-cop. Look no further than the Mendocino H.S. basketball controversy,** where some have suggested that "I Can't Breathe" t-shirts, criticizing NYPD Officer Pantaleo and the Staten Island grand jury, are insensitive to the family of a Mendocino County sheriff's deputy who was killed in the line of duty, although I cannot imagine what one has to do with the other. Or the suggestion by the Cleveland police officers' union that such t-shirts insult all cops everywhere.

(**) Which got more complicated. After the host school backed down on its t-shirt ban, the Mendocino coach prohibited his players from wearing the shirts in warm-ups for Tuesday's game. When the Mendocino superintendent overruled that decision, the coach refused to coach. The players (including the one player who did not play on Monday under the host school's prohibition) did not wear the shirts on Tuesday. Members of the Mendocino girls' team, who were not playing in the tournament, sat in the stands wearing the shirts.

Anyway, maybe this is another example of the militarization of police departments--you can't criticize the military without being labeled a traitor, either.

Posted by Howard Wasserman on December 31, 2014 at 10:45 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (12)

Saturday, December 27, 2014

Gutless educational administrators and the First Amendment, part 6577 (Updated)

This is pathetic and really depressing. (Note the title is changed to reflect that the public face of the decision is not the school's AD, but the school's principal, which just makes this even more depressing).

First, we bemoan about how uninvolved and politically disinterested "kids today" are, then we systematically shut down their efforts to be involved or to take a stand.

Second, note the administration's move here--"we are too small to keep the peace 'should someone get upset and choose to act out,' so we are just going to stop people from speaking." This is a preemptive heckler's veto--In the ordinary heckler's veto, government stops the speaker when the crowd gets unruly and actually threatens violence; here, the government is stopping the speaker with no basis to know or reason to believe that anyone will get unruly, essentially by pleading poverty. Of course, government never has enough resources to protect everyone should someone decide to act out (someone will get hurt before police/security can respond). So, taken to its extreme, no one should be able to say anything that (government finds) controversial or objectionable, because government never can guarantee complete safety.

Third, while high schools are different and administrators have much greater control over expression on school grounds, this seems a step too far, particularly as to fans in the stands. Is an "I Can't Breathe" shirt really more likely to cause a disruption than an armband in the middle of Vietnam?

Fourth, given the insistence that "all political statements" be kept away from the tournament, should we assume that the national anthem will not be sung?

The tourney begins Monday. No indication that the players or potential shirt-wearing fans are running to court to even try to get an injunction.

Update: Some more details in this story. Before explaining the preemptive heckler's veto, the principal of the host school--a professional educator--indicated that she "respected the Mendocino teams 'for paying attention to what is going on in the world around them.'" Apparently, however, this professional educator does not respect them enough to not punish them for paying attention to what is going on in the world around them. Irony really is dead.

The Huff Post story also indicates that the father has been in touch with the ACLU and is hoping to hear back after the holiday. Someone in the N.D. Cal. is going to be handling an emergency TRO Monday morning.

Further Update: Per a commenter: The school district relented following negotiations with an attorney for one of the players--players and spectators will be permitted to wear the t-shirts, so long as they "do not cause any serious problems at the tournament." Of course, framing it that way walks us right back to the heckler's veto--if I object to the shirts, my motivation is to cause a disruption, which would then prompt the school district to do what I want and stop people from wearing them.

The Mendocino HS girls' team will not be able to play; since too few players accepted the no-t-shirt condition last week, the tournament invited a replacement team. This is where a § 1983 damages action would come in handy. Unfortunately, there is no way a court would find it clearly established that banning these shirts was unconstitutional, which would entail a parsing of Justice Alito's concurrence in Morse.

Posted by Howard Wasserman on December 27, 2014 at 10:00 PM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (8)

Tuesday, December 23, 2014

Eye of the Beholder

CensoredHistorically, case law has been hesitant to define what constitutes “art.”  However, with respect to what constitutes “pornography,” we all know the infamous Supreme Court line, “I know it when I see it,” as well as the discussion of the topic in this case and Justice Thurgood Marshall’s opinion here.  All of this being said, I am reminded of a painting that I once saw in a law professor’s office.  It was of a nude woman, clearly artistic, and certainly not pornographic.  Yet, I imagine that some students and other visitors were likely uncomfortable with it.  A personal office that is part of a larger professional environment may thus not be the best location for such displays, and courts are weighing in.  Should some art be off limits in the office – even in law schools?

Posted by Kelly Anders on December 23, 2014 at 12:36 PM in Culture, Deliberation and voices, First Amendment, Life of Law Schools, Workplace Law | Permalink | Comments (2)

Tuesday, December 16, 2014

But can I wear my "Fuck the Draft" jacket?

From Judge Susan E. Gash, presiding over the trial of NFL player Aaron Hernandez:

No person wearing clothing, or a button or other object attached to clothing, or carrying an object that displays any Patriots or other NFL team logo, football-related insignia, or words and/or a photograph that relate in any way to this case will be permitted entry to the Fall River Justice Center during any phase of the trial.

Does this seem excessive, especially as it applies not only to the courtroom, but within the entire building? And is it necessary to ban everything related to all of football, not just the Patriots or even just the NFL? Is it really that problematic for jurors to see any and all football-related things?

Posted by Howard Wasserman on December 16, 2014 at 04:48 PM in First Amendment, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (3)

Friday, December 12, 2014

Much ado?

[Update: Eugene Volokh, Golstein's UCLA colleague, weighs in. He and I are in lockstep agreement (as always, he says it better than I did) about the need for law students to learn how to push through emotional investment and the seemingly boundless scope of the objections being leveled here. He adds two important points: 1) He gives the full question, which was much more detailed and provided students with the relevant facts and 2) Goldstein was not pressured by the administration to discard the question.]

Prof. Robert Goldstein at UCLA asked the following question on his First Amendment exam:

Write a memorandum for District Attorney Robert McCulloch on the constitutional merits of indicting Michael Brown's stepfather for advocating illegal activity when he yelled 'Burn this bitch down,' after McCulloch announced the grand jury's decision.

And outrage has resulted. Elis Mystal at ATL says Goldstein was asking students "to advocate for an extremist point that is shared by only the worst people in an exam setting," akin to making students "defend Holocaust deniers or ISIS terrorists." Goldstein apologized (Mystal has the text of his note to students) and is disregarding the question, saying the subject is "too raw" to be useful as an evaluative tool.

But what is really wrong with the question? I already have argued that Louis Head (Brown's stepfather) did not commit incitement as understood in Brandenburg, Hess, and Claiborne Hardware. Nevertheless, this seems like a legitimate question to ask a First Amendment class, one that ties legal education into the current world. One of the things I tell my students is that having a legal education means you inevitably look at everything through a legal lens. So why not use significant current event that raises a legitimate legal issue as a way to teach the issue? And the question did not require anyone to take or defend any particular position, much less one equivalent to Holocaust denial; it said to write a memo on the constitutional merits, which plainly leaves room to argue that a prosecution could not constitutionally be brought (which, again, I believe is the "correct" First Amendment answer).*

* If there is a defect in the question, it is that it assumes a detailed level of knowledge of what happened on the night of the grand jury announcement and when Head made his statements, all necessary for the Brandenburg analysis.

Does that much turn on requiring the memo to the DA? (Mystal seems to think so, hightlighted in his responses to commenters on his ATL post.) Does advising the DA mean the student only can say that the First Amendment would not be violated and that a prosecution is permissible--couldn't they also write  "no, you will be violating the First Amendment if you try to bring this prosecution, remember your obligations to do justice"? Would we not be having this conversation if students had been asked to write a memo for a criminal defense lawyer or for the ACLU figuring out whether they have a meritorious constitutional defense against any prosecution?

I did not use any Ferguson questions on my Evidence exam this semester, mainly because I used the events (especially the convenience-store video and the alleged theft) in class discussions to illustrate character and other acts. But I never would have thought twice about asking such a question, or about putting the students in the position of having to argue that such evidence is admissible in any prosecution (which, ironically, would have put them in the position of the defendant in that case).

Posted by Howard Wasserman on December 12, 2014 at 08:31 AM in First Amendment, Howard Wasserman, Law and Politics, Teaching Law | Permalink | Comments (24)

Sunday, December 07, 2014

Why it's impossible to regulate racist speech

Too often, the people doing the regulating do not (or cannot) get humor and satire. Latest case in point: the English Football Association has brought "charges" against star player Mario Balotelli (who is Italian, of Ghanaian descent) over an Instagram post of the picture "Dont' Be Racist," which talks about how multi-ethnic and non-racist Mario is by reference to all the ethnic stereotypes he embodies.

In my view, it's pretty funny. But the FA says Balotelli violated a prohibition on "abusive and/or insulting and/or improper," aggravated by "reference to ethnic origin and/or color and/or race and/or nationality and/or religion or belief." I posted the picture after the jump. Is it possible to sensibly see this as anything other than joke, reappropriating stereotypes to undermine them? Is this really abusive or insulting? Or is this simply what happens--when you try to regulate words, context inevitably gets lost.

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Posted by Howard Wasserman on December 7, 2014 at 10:31 AM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (9)

Friday, December 05, 2014

SCOTUS takes license plate case

SCOTUS (finally) granted cert to decide whether the slogans and messages on license plates ("Live Free or Die", "Choose Life", "Save the Manatee") constitute government speech or a forum for private speech (thus subject to limits on viewpoint discrimination). Although I never got around to writing about it, these cases have been percolating since I was still clerking. The case comes out of the Fifth Circuit and involves Texas denying a specialty plate to the Sons of Confederate Veterans, which would have included a Confederate flag. I always have viewed the slogans as government speech and the plate number as the speech of the vehicle owner. But this will give everyone a chance to discuss Wooley, one of the Court's underrated First Amendment decisions.

Posted by Howard Wasserman on December 5, 2014 at 04:11 PM in First Amendment, Howard Wasserman | Permalink | Comments (1)

Tuesday, December 02, 2014

Michael Brown and the return of Brandenburg

A colleague asks a question:

Did Louis Head, Michael Brown's stepfather, commit incitement within the meaning of Brandenburg? Law enforcement apparently is investigating possible charges. Immediately following the announcement of the grand jury decision, Head was captured on video (embedded-go to 2:30 mark) shouting "Burn this motherfucker down" and "Burn this bitch down" (as people around him tried to calm him down).

Brandenburg requires that incitement be "directed to inciting or producing imminent lawless action and is likely to incite or produce such action." The Brandenburg paradigm is a torches-and-pitchforks mob outside a poorly guarded jail and the leader saying "let's get that guy in there." We definitely have a mob here (although hardly in a poorly guarded area, since there were police in riot gear across the barricade and the National Guard was in the area). But I do not see how the state could show intent. There also is Hess v. Indiana, in which the Court overturned a conviction where the defendant was not addressing any persons or group and he was no louder than anyone else in the group. Certainly Head was at the center of crowd and he can be seen asking for a microphone or bullhorn, as if trying to address the crowd above the noise. But he also just appears to be one of many people shouting into the sky in a show of anger, in his case, immediately after embracing his wife, who had just broken down.* He just happened to be caught on camera, which raises an interesting question--if his words reached millions watching TV but not the people who did the actual rioting, can he be said to have incited the crowd?

* Yes, I acknowledge that this perception may be influenced by my views of the case and the First Amendment and that mileage may vary.

I have been kicking around an idea that the legal change to come out of Ferguson may be all about the First Amendment--militarized police responding to public gatherings, negotiations on rules of public protest, citizen video, unconstitutional move-along policies. A good old-fashioned incitement/advocacy of unlawful conduct argument would top that off.

Posted by Howard Wasserman on December 2, 2014 at 06:04 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (4)

Monday, December 01, 2014

Free speech in the NFL

It will be interesting to see how this plays out. Five St. Louis Rams players walked onto the field in the "Hands Up, Don't Shoot" gesture; the St. Louis Police Officers Association is demanding that the players be disciplined and that the team issue a public apology. The full statement from the association is angry and unprofessional (not to mention loaded with really stupid football puns); it quotes extensively from the organization's business manager, a fired police officer now serving in the state legislature who has been one of the few voices opposing body cameras.

NFL Commissioner Roger Goodell is a coward and a liar. But will be really punish players for core political speech about a local and ongoing matter of public import? (Note: Yes, I know he can punish them; the question is will he and, if he does, how does he explain it away).

One last note: In the statement, the association refers to Darren Wilson (not by name) as the "now-exonerated officer." Is that an appropriate description of the process that was used?

Posted by Howard Wasserman on December 1, 2014 at 07:06 AM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (8)

Wednesday, November 26, 2014

When "protests" become "riots"

Tim's final post talks about Monday's protests turning violent and destructive (and the process being repeated on Tuesday) as a tipping point, in which public (and media) support and attention shifts away from the protesters. I do not know if we have hit that point. There is still much to sort out about what has been happening on the ground the past few nights. And it appears that many of the unlawful mistakes we saw in July (mass arrests of even peaceful protesters, arresting people for recording) are being repeated. And the number of sympathy protests across the country (many far more peaceful) may suggest a deeper level of support.

Nevertheless, Tim's point about public sympathy reminded me of Walker v. City of Birmingham (which I wrote about last week) and what it indicates about the connection between public speech and public support. The events in Walker occurred during Easter Week 1963, four months before the March on Washington, when the violent response to peaceful were entering living rooms--arguably at or near the height of public support for the movement. But the case did not reach SCOTUS until 1967 (argued in March, decided in June). By that point, we had seen the same shift in public support and sympathy away from civil rights protesters and the movement, given the increasing militancy in the movement, as well as public concern about riots (on race, the war, etc.) throughout the country.

Brennan suspected that the changed social circumstances had influenced the majority in rejecting the protesters' First Amendment arguments. He closed his opinion with a sharp reminder that public fears about riots should not override the right to peaceful public protest. The first part remains applicable to current events:

We cannot permit fears of "riots" and "civil disobedience" generated by slogans like "Black Power" to divert our attention from what is here at stake -- not violence or the right of the State to control its streets and sidewalks, but the insulation from attack of ex parte orders and legislation upon which they are based even when patently impermissible prior restraints on the exercise of First Amendment rights.

Tim is correct that public sympathy wanes. The right of public protest should not wane with it.

Posted by Howard Wasserman on November 26, 2014 at 10:31 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (13)