Sunday, December 10, 2017

Nazis and free speech

Apropos of nothing: Nazis are the focal point for all sides in the debate over free speech. Those seeking a narrower approach to free speech want a rule that specifically and explicitly excludes actual Nazis from First Amendment protection; consider one comment to this post and the repeated  position of Elie Mystal in this RadioLab "More Perfect" Debate. Those who defend the current expansive understanding of free speech consider protection for Nazis, especially in Skokie, as a high point in the fight for free speech.

No conclusion to be drawn; just an observation.

Posted by Howard Wasserman on December 10, 2017 at 03:10 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Thursday, December 07, 2017

Casablanca and the greatest heckler's veto in cinema history (Updated Twice)

(New Update: The film turns 75 this year and the New York Post tells the backstory of the movie's travails and unexpected success).

Steve Lubet at Faculty Lounge links to a 2015 essay calling the "Le Marseillaise" scene from Casablana the greatest in movie history and the turning point in the film.

 

But this scene involves what some now label as a heckler's veto. Major Strasser and the Nazis are Milo Yiannopoulos or Ann Coulter or Charles Murray; everyone else in the bar are angry campus liberals or SJWs; and the latter spoke so loudly over the former as to drown-out its speech, make it impossible to be heard, and cause them to stop speaking. If, as some say, this is a heckler's veto, the government could have stopped the house band from playing or, as happened in the film, shut down the forum (although only after collecting its winnings). And so we lose the turning-point moment that galvanized what everyone regards as the "good guys" in the story.

Mark Tushnet and Erwin Chemerinsky/Howard Gillman have argued that it may depend on the nature of the space. In an open space, the Nazis did not have a superseding right of access compared with the supporters of France, so they did not have a superseding right to speak and be heard. But others insist that government can stop one speaker from being so loud as to make it impossible for another to be heard--that this is disruption, not counter-speech. Perhaps the Allies in the bar should have allowed the Nazis to finish their song and then sung their own. Or they should have gone to another space. Or they should have listened to the ideas in the Nazi song and given them a chance to persuade.

I do not have the answer to this problem and I am still turning it over for a future article. But I like this scene because it illustrates the complexity of the balance.

Update: Lubet offers an interesting take in response to my original post. He hits one point that I have heard from several people on these issues--the Allies were not singing to drown out their rivals, but to inspire the audience with their own message and their is a difference between presenting your message, loudly, and presenting a message with the intent of drowning out. I do not think intent matters, because it is difficult to separate--inspiring the Allies in the bar required that their voices down out those of the Nazi--even if the  Nazis do not stop singing, they could not be heard, which was the point.

Posted by Howard Wasserman on December 7, 2017 at 05:12 PM in Culture, First Amendment, Howard Wasserman | Permalink | Comments (24)

Tuesday, December 05, 2017

Argument in Masterpiece Cakeshop

Having read the transcript, I have no idea where this is going or what standard anyone seems to be gravitating to. The only one of the four advocates who really got an opportunity to frame a legal standard was David Cole of the ACLU on behalf of the complainants, who was given the time to explain how O'Brien fits the scheme. Otherwise, counsel for the petitioners got caught up in an escalating series of hypotheticals involving make-up artists and sandwich artists and the difference between chefs and bakers (and, I thought, fumbled a bail-out question from Justice Alito about the expressive nature of architecture). SG Noel Francisco acknowledged the Court may not adopt his "race is different" position, although he did put across a "predominant" purpose or effect idea. And everyone fought the justices' hypotheticals (there seems to be more of that going on this Term).

The justices also seemed all over the map. Only Justice Alito asked questions obviously designed to support the attorneys on one side and challenge the attorneys on the other. The other Justices were asking pointed and prodding questions of both sides. And a lot of those questions read like a Donald Trump speech--"It's a great cake, it's a beautiful cake."

We did learn a few things: 1) Justice Alito does not go to may five-star restaurants; 2) part of Francisco's wedding cake remains in his freezer; 3) Justice Gorsuch does not like the taste of wedding cake*; 4) Ollie's Barbecue and Piggie Park have not gotten this much attention in 50 years.

[*] We were lucky. Our wedding cake was delicious.

Posted by Howard Wasserman on December 5, 2017 at 05:39 PM in First Amendment, Howard Wasserman | Permalink | Comments (6)

Sunday, November 19, 2017

Reminder: Discovery is a two-way street

Attorneys for Alabama Media Group responded (copy of letter, free from typos and grammatical errors, in story) to the insane and incoherent letter from Roy Moore's attorney. In addition to standing by the story and denying the claims in the initial letter, AMG's lawyers say they expect litigation "would also reveal other important information about your clients" and makes a counter-demand that Moore preserve and maintain documents, materials, and information that "is or could remotely be relevant in any manner to any of the claims that you have made." This includes information relevant to Moore's "romantic relationships or physical encounters (whether consensual or not)."

This was not as brazen as the New York Times letter from October 2016, which expressly dared Trump to sue. But both are interesting examples of an emerging genre of legal writing.

Posted by Howard Wasserman on November 19, 2017 at 11:46 PM in Civil Procedure, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Tuesday, November 14, 2017

Two hours of First Amendment training

Greg Thatcher, a professor of public health at Fresno State, has settled a First Amendment lawsuit claiming he erased students' chalked messages on campus sidewalks. Thatcher will pay $ 1000 to each of the students, pay $ 15,000 in attorney's fees to the Alliance Defending Freedom, and undergo two hours of "First Amendment training" with ADF. Two thoughts.

I hope "First Amendment training" does not become the new "diversity training" or "sexual harassment training."

I think there is an interesting under-color-of-law question here. Is everything a professor does on a public-university campus during school hours under color? He was not in the classroom, his office, or his building. He is dressed like he is going to the gym (although, in fairness, so do I on non-teaching days). In the encounter, he sometimes strikes a position of a competing speaker and sometimes strikes a position of an authority enforcing (erroneously understood) campus-speech regulations. And it is not clear enforcing those rules is any part of his job, although students may not understand that. He did tell/order/ask some of his students to erase the messages with him, which reflects an exercise of his obvious authority.

Posted by Howard Wasserman on November 14, 2017 at 08:42 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Monday, November 13, 2017

First Amendment Day at SCOTUS

SCOTUS granted cert in three First Amendment cases today. The big one is National Institute of Family and Life Advocates v. Becerra, a challenge to a California law requiring that crisis pregnancy centers provide notice that publicly funded family-planning services are available elsewhere and that unlicensed clinics are unlicensed; the Court took it as a compelled-speech case and a vehicle to resolve a circuit split over the standard for "professional speech" (the Ninth Circuit applied intermediate scrutiny, while the Fourth Circuit applied strict scrutiny in invalidating similar regulations in Maryland.

The political valance of the case is interesting, as Dahlia Lithwick argues. The plaintiff here is a crisis-pregnancy center, resisting regulations that, in the name of protecting women's health, require the clinics to disclose information about the limits of their services (not providing abortion or contraception) and directing patients elsewhere for those services. But if these regulations violate the First Amendment, so should regulations in many states requiring clinics to provide pre-abortion counseling or to provide arguably false medical information about links between abortion and breast cancer, suicide, and mental-health consequences, designed to dissuade women from going through with the procedure.

Incidentally, this case meets the procedural posture I was looking for: The trial court denied a preliminary injunction, the court of appeals affirmed, and SCOTUS granted cert (to reverse, if I had to predict).

Posted by Howard Wasserman on November 13, 2017 at 07:59 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Friday, November 10, 2017

Procedural posture in First Amendment cases (Updated)

Update: Note the clarification below, as I was not precise enough. The questioner was asking about cases in which a preliminary injunction was sought and denied. In White (and one case I thought of, Simon & Schuster), the plaintiff did not move for a preliminary injunction. Instead, the parties went straight to cross-motions for summary judgment on permanent injunctive relief.

A question was asked of me: Can we think of significant First Amendment cases in which the lower courts denied a preliminary injunction barring enforcement of a law, then SCOTUS granted cert., reversed, and held that the challenged law is not enforceable?

The only one I could come up with off the top of my head is Steffel v. Thompson. And there the lower courts denied relief on standing and Younger grounds, never reaching the First Amendment merits.

Any cases that fit this description, where the lower courts declared the law constitutionally valid and declined to enjoin, then SCOTUS granted cert to reverse?

Posted by Howard Wasserman on November 10, 2017 at 12:07 AM in Civil Procedure, First Amendment, Howard Wasserman | Permalink | Comments (3)

Saturday, November 04, 2017

Are The Bangles no longer welcome at Reed College, either?

Read the intro. Whatever else is happening, this demonstrates a point that came out in the comments to this post: The level of offense and the level of evil that protesters see in objectionable speech is beyond what we saw previously, which explains the more-intense reactions and confrontations between speech and counter-speech.

Posted by Howard Wasserman on November 4, 2017 at 05:18 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (9)

Wednesday, November 01, 2017

Chemerinsky and Gillman on disruption as free speech

Erwin Chemerinsky and Howard Gillman (Chancellor at UC-Irvine) have a piece in the Chronicle of Higher Education discussing when and if disruption of one speaker constitutes free speech by the counter-speaker. The piece captures a lot of what I have been thinking and trying to get at in my posts on the subject. I like the argument and it works as a jumping-off point.

They argue that in an open forum, including on campus, no speaker has a superseding right of access and no speaker has a right to speak uninterrupted. A limited public forum with rules and reservation processes creates a preferred right of access to the original speaker and thus limits the counter-speech rights, such as to non-disruptive protests or to counter-speech activities outside the forum. This distinction works, although defining the nature of the forum remains important and perhaps difficult. We also have to find a way to address the situation in which loud counter-protesters in the general forum (where, H&C argue, they can be as loud as they want to be) drown-out the speaker inside the limited forum.

I disagree that we should label what counter-speakers are doing here as a heckler's veto, which I believe requires government action. I agree that the attitude reflected is "'If we can’t get the government to censor the speech, then we’ll do it ourselves'", but we need a different term. The better description might be civil disobedience--these protesters are breaking the rules, although for expressive purposes, and are subject to arrest for doing so. Government's obligation, H&C argue, is to allow the speaker to go forward by removing the disrupters. And when government fails to do so, that is a heckler's veto.

Posted by Howard Wasserman on November 1, 2017 at 05:17 PM in First Amendment, Howard Wasserman | Permalink | Comments (6)

Wednesday, October 11, 2017

How far we have come, in the wrong direction (Updated)

Gyree Durante, a freshman backup quarterback at Albright College, a D-III school in Pennsylvania, was kicked off the team for kneeling during the national anthem. The team's "leadership council" had decided to kneel during the coin toss (because racial injustice is intimately associated with coin tosses) but stand for the anthem. Durante thus acted against the team decision that was an "expression of team unity and out of the mutual respect team members have for one another and the value they place on their differences."

[Updated: Upon further consideration, I must marvel at how so much anti-intellectualism and raw majoritarianism was packed into such a seemingly anodyne statement. Because the majority won, in a rout. The athlete inclined to do so was denied the opportunity to express a criticism of an aspect of American society in a meaningful way, unless kneeling or coin tosses per se mean something about racially disparate police violence. The majority deigned to allow him a small expressive token, but that token is meaningless as a message (or the message the athlete wanted to send), again unless kneeling or coin tosses say something about racism and police violence. Yet this is praised as  "mutual respect for differences."  There was no mutual respect at work here--the majority got what it wanted by prohibiting a protest around the symbol of what some people see as the social problem to be protested; Duarte got nothing of expressive consequence.]

In this article, I discussed Toni Smith, who in 2003 was a member of the women's basketball team at Manhattanville College, a D-III school in New York. During the ramp-up to the Iraq invasion (which was being sold to the public as a necessary national-security response to 9/11), Smith would turn her back to the flag during the anthem. She was not sanctioned and was supported by her teammates, coaches, and school administrators. Some fans booed or jeered and one person walked onto the court mid-game to get in her face. A Google search revealed that Smith (now Smith-Thompson) is an organizer with the NYCLU and wrote an open letter to Colin Kaepernick in 2016.

But it is striking that such protests (which I describe in the article as symbolic counter-speech, in that a person counter-speaks to a symbol through the symbol itself) draw more public anger and less support from teammates and those around the protester today than 15 years ago, on the eve of what at the time was a popular military action. That speaks depressing volumes to our willingness to protect political dissent (or at least certain forms of political dissent). Smith-Thompson suggested the difference is social media. Another difference is that President George W. Bush did not make a hobby of calling out dissenters as unpatriotic sons-of-bitches.

Posted by Howard Wasserman on October 11, 2017 at 10:39 PM in First Amendment, Howard Wasserman | Permalink | Comments (7)

Against unity

Unity is the enemy of the freedom of speech.

If unity is a primary value or principle, then free speech cannot exist.  If the goal is for society (or some segment of it) to be "unified," then speech that "divides"--that undermines unity or does something other than unify--cannot be tolerated. But another word for speech that "divides" is speech that anyone disagrees with, Holmes's "thought that we hate." If the goal is unity, then ideas and speech that divide-- ideas that anyone disagrees with--can be and must be suppressed or pushed out of sight. A society that values unity uber alles has no need to protect the freedom of speech and will not protect the freedom of speech. A "united" community will not seek to suppress speech that unites everyone in agreement, only speech that divides. But division undermines unity, so that society is justified in suppressing that dividing speech.

This means that "unity" is not a neutral or benign principle. A governing entity (the NFL, the President's spokesperson, whoever)  that argues about the need for unity is really arguing that it can and should be able to suppress speech. Because those who utter divisive--i.e., unpopular or dissenting--ideas divide, undermining that goal of unity.

Posted by Howard Wasserman on October 11, 2017 at 09:31 AM in First Amendment, Howard Wasserman | Permalink | Comments (23)

Saturday, October 07, 2017

University of Wisconsin bans counter-speech

An intentionally provocative headline, but not too far off. The Board of Regents adopted a policy that "students found to have twice engaged in violence or other disorderly conduct that disrupts others' free speech would be suspended. Students found to have disrupted others' free expression three times would be expelled." (H/T: Steven Lubet). The  linked article contains quotations capturing both sides of this: The regent who says the policy promotes listening and that "drowning out another speaker" does not qualify as freedom of speech, compared with the student who argues that the First Amendment is supposed to be messy and contentious.

The policy is glaringly vague (what is "disorderly conduct," what is "disruption"), etc.).  I expect the university to try to clear that up in its implementing regulations. Meanwhile, I wonder if a constitutional challenge now would be deemed unripe, since the policy is not yet at the point of implementation. In any event, I do not see how the university could write regulations that are clear enough to pass constitutional muster. If the counter-demonstrating, where the counter-demonstrators outnumber and outshout the original speakers, does that necessarily become disruption? Even if listening is a worthy goal to promote, can the state give people a choice between listening (which sounds compelled) or staying away, with talking back no longer an option?

Posted by Howard Wasserman on October 7, 2017 at 02:59 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (17)

Barnette and flag-related speech

Video in this post shows a female fan at last night's Lakers game (played in Ontario, CA) throwing a drink and swearing at two fans who knelt during the Star Spangled Banner. As John Q. Barrett pointed out last week, next year is the 75th anniversary of West Virginia Bd. of Educ. v. Barnette, a high point of First Amendment jurisprudence.

But Barnette's legacy has split in unfortunate ways. Barnette stands for the prohibition on compelled expression, an idea that is popular and thriving, expanding to all manner of expression and expressive conduct, such as baking cakes. But Barnette also stands for a prohibition on compelled participation in flag-related ceremonies, which carries with it the right to express one's own message through that non-participation. The actions described above and the general public reaction to and controversy over the anthem at sporting events shows broad public rejection of that piece of Barnette. The public seems less accepting and tolerant of flag counter-speech, derived from Barnette, now than it was 13 years ago, when I wrote this in the early days of Iraq War. And recall that several Justices changed their minds on this issue from Gobitis to Barnette in part because of the violence directed against Jehovah's Witnesses following the first decision; the shift to protecting the right to opt-out was designed to protect dissenters.

We are organizing a symposium at FIU on Barnette's 75th anniversary for next fall. The seeming demise of this part of Barnette could be an important point of discussion.

Posted by Howard Wasserman on October 7, 2017 at 12:00 PM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (1)

Friday, October 06, 2017

ACLU, free speech, and discrimination

The New York Times writes about soul-searching at the ACLU in the wake of Charlottesville. Two items of note.

First, Executive Director Anthony Romero discusses the new policy of not representing protesters who plan to march while armed. Romero ties this to early ACLU policies opposing permits for Nazi groups "drilling with arms." He argues that the ACLU has come full circle with respect to Nazi groups. The analogue to Charlottesville is not Skokie, where counter-protesters outnumbered Nazis 70-to-1, the Nazis were unarmed, and the danger was angry spectators attacking them. Charlottesville is more like the 1930s, when fascism was ascendant in Europe and sufficiently popular in the United States to draw large crowds.

Second, the article describes an open letter by around 200 staffers, arguing that the ACLU's "broader mission — which includes advancing the racial justice guarantees in the Constitution and elsewhere, not just the First Amendment — continues to be undermined by our rigid stance" on hate speech. It is easy to criticize the 200 (as some have) for not understanding what the ACLU is about, given its history, and to tell them to find a different advocacy group. But the signatories are onto something. The modern ACLU has made certain forms of equality part of its core mission. And absolutist protection for free speech does conflict with certain visions of racial justice that would not protect speech advocating for inequality or against equality. It is not the first time this potential conflict has caused the organization problems--in the early '90s, the organization was only lukewarm in its opposition to hate-speech laws and it supported sentence enhancement for racially motivated crimes. And recall the ACLU's 2015 Workplan of major civil-liberties issues, which did not say much about the First Amendment. The signatories have exposed an internal tension of the organization's own making. The usual response to the tension is that speech must be protected for all, lest government turn its censoriousness on equality-promoting groups (consider that the Supreme Court case declaring sentence-enhancement valid involved a prosecution of African-Americans for assaulting white victims). But many racial-justice advocates reject that idea.

The focus on this tension reminds me of the potential tension between "civil liberties" (commonly understood as individual rights as against government, such as free speech) and "civil rights" (commonly understood as equality--both in the face of government discrimination and government efforts to stop private discrimination by legislation). I recall the Harvard Civil Rights-Civil Liberties Law review publishing a symposium on whether its name is an oxymoron. The ACLU may be facing the same problem, as some of its staffers and supporters recognize that they signed up the equality rather than the speech.

Posted by Howard Wasserman on October 6, 2017 at 09:31 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (2)

Wednesday, September 27, 2017

Sports and Speech: From the ridiculous to the sublime

I have not weighed in on the craziness about protests in the NFL, because so much of this (from both sides) is more noise than signal. For now, I want to flag to recent pieces:

1) Jonathan Eig writes that the public hated Muhammad Ali when he was speaking (and acting) out against the war at the time he was the loudest and angriest; it was only after he became harmless (because of his medical condition) and less adversarial in his views that he became beloved. The same is happening with Colin Kaepernick, to a limited extent. As some people praise him for starting a movement, he remains out of a job. And the message he was trying to get across--inequality and systemic mistreatment of African Americans--has been replaced by a league-approved anodyne message of "unity" and objection to "division."* Perhaps Kaepernick will get a job, although I doubt it. More likely, he will be praised 15 years from now, when he no longer can play football (and have a high profile to make an expressive effect), for standing up for his beliefs.

[*] Hint: If the only goal was to be "united" and not "divided," we would not need a First Amendment.

2) This story about a fan ejected from Yankee Stadium for shouting the location of pitches in Spanish. The umpire removed him for "cheating" by tipping the Yankee batters to the location of pitches. This is beyond stupid. First, the idea that he is remotely helping the batter to hit a 95-mph pitch is nonsense--the pitch is in the catcher's glove before the batter would hear anything. Second, there are 40,000 fans shouting the location of pitches--it is what fans do and are expected to do.

To the extent there is a lawsuit, I am curious how the status of current Yankee Stadium is resolved. Old Yankee Stadium (the one used, pre- or post-renovation, from 1923-2008) was owned by New York City and there were some good arguments that, in using the stadium, the Yankees acted under color and became bound by the First Amendment. A district court held that in 1978, in a lawsuit brought by female sportswriters who were barred from the lockerrooms during the 1976 World Series. And some good arguments were pled in a lawsuit filed by a fan who had been removed for failing to stand for "God Bless America," but the case settled. Public funds paid for more than 50 % of construction of the current stadium, although I do not know the details about ownership and control.

Posted by Howard Wasserman on September 27, 2017 at 02:09 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (11)

Monday, September 25, 2017

Barnette at 75

John Q. Barrett reminds us that next June is the 75th anniversary of West Virginia Bd. of Educ. v. Barnette, which makes the short list of most important First Amendment decisions, both for its principles and its rhetoric. Given everything going on in the world of sports since last week, both are being put to the test.

Posted by Howard Wasserman on September 25, 2017 at 04:37 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (12)

Sunday, September 24, 2017

Hecklers and counter-speakers (again)

Mark Tushnet, writing on Vox and Balkinization, argues that the counter-speakers/hecklers/audience members who attempt to shout down other speakers engage in constitutionally protected activities and the First Amendment is violated by many of a state university's efforts to stop hecklers. Mark argues that the speaker and the hecklers are "symmetrically situated with respect to speech" and that the intuitive "first come, first served" rule fails to capture the complexity of situations or to recognize that it is not always clear who is "first" in any situation. (If the speaker is inside the auditorium and the hecklers are outside, the hecklers are first in that outdoor space).

Mark captures well a lot of what I have been thinking and arguing about this, that deriding hecklers/protesters/counter-speakers as exercising the dreaded heckler's veto misses the mark. Labeling this  as "noisy interference" also is too simplistic, as it fails to capture the expressive nature of what many hecklers do. And all of this comes on the heels of a poll showing that a majority of college students believe it is ok to shout-down speakers.

Mark is searching for a rule or balance that does not inevitably take content into account. One answer might be that it depends on the precise forum,. On this, perhaps we distinguish between a limited-space auditorium that must be reserved and open areas on campus; audience members have greater counter-speech rights in the latter than the former. Or we distinguish between the speaker stage and the audience, so a heckler can shout from the audience, but not run on stage and grab the microphone.

But Mark's arguments show that the content problem arguably never goes away (something I had not crystallized previously). Consider audience members in an auditorium, with the speaker on stage. Mark argues that, even if the speaker has priority over the audience, all members of the audience are symmetrically situated. We can imagine a situation in which the crowd of speaker-supporters is loud and raucous, to the point that their cheering and shouts of "USA! USA!" or "you said it" cause the speaker to pause or make it impossible for him to hear. I doubt anyone would want these supporters removed. So what is the difference between audience members whose jeering and shouts of "fascist" (Mark uses  Joe Wilson's "You lie") cause the speaker to pause or make it impossible for him to be heard? Content and viewpoint.

We might get around the problem by distinguishing the nature of the forum and the expression in that forum0--an academic lecture as opposed to a political or partisan rally. But that highlights the complexity of the problem and the absence of easy answers--the precise point Mark is trying to make.

Posted by Howard Wasserman on September 24, 2017 at 06:02 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (14)

Tuesday, August 29, 2017

Palin v. NYT dismissed

Judge Rakoff of the Southern District of New York has dismissed Sarah Palin's defamation action against The New York Times, concluding that the allegations of actual malice, in conjunction with the testimony heard in questionable evidentiary hearing, showed that Palin had not pled facts plausibly showing that the editorial-page editor knew or recklessly disregarded the truth of statements about the connection between Palin's PAC publications (which featured gun-sites over "targeted" congressional races) and the Gabby Giffords shooting.

The order includes a lengthy footnote explaining the use of the evidentiary hearing. He justified it because a "court must have some knowledge of the context in which the underlying events occurred in order to carry out the function with which the Supreme Court has tasked it" --the "context-specific task" of evaluating plausibility. Also, neither party objected, the facts established by the testimony in the hearing are not in dispute, and no credibility determinations were made. And although he did not mention it, it appears that none of the testimony contradicted anything in the complaint. The testimony in the hearing was combined with the facts in the complaint and used to measure whether the facts showed actual malice.

But all this ignores FRCP 12(d), under which a court converts a 12(b)(6) to a motion for summary judgment when materials beyond the four corners of the complaint are used. Iqbal did not overrule or repeal 12(d), so the need for knowledge of the context cannot necessitate such hearings. It also would have been simple enough for the court to take the evidentiary hearing and convert to summary judgment (although perhaps the parties would have demanded some discovery, if only on actual malice). In short, obtaining and using information beyond the allegations of the complaint cannot be justified under the current rules without converting.

The merits discussion also appears to make the hearing unnecessary, because much of the analysis suggest that the problem with the complaint was legal insufficiency rather than plausibility-factual insufficiency. The problem was not a dearth of facts or the conclusoriness of the facts, but that the facts alleged, even if detailed, could not establish actual malice. For example, allegations of hostility towards Palin, economic motive to criticize Palin, and failure to comply with journalistic practices--alleged, in varying degrees of conclusoriness--all are insufficient, as a matter of law, to show actual malice.

All-in-all, a good First Amendment decision (I should add that there is some great language about the First Amendment, political speech, and the narrowness of actual malice), but reached in a procedurally incorrect way.

Posted by Howard Wasserman on August 29, 2017 at 06:30 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (10)

Saturday, August 19, 2017

Heckler's Veto?

According to reports, tens of thousands of counter-protesters showed up in marches and rallies in Boston, vastly outnumbering the few hundred people attending the the planned rally in Boston Common, which disbanded after an hour without planned speeches. From what I have read, there were so many more counter-protesters than ralliers that the latter could not be heard. And that was the goal of the counter-protesters.

So: Heckler's veto? And if not, how is it different from some of the campus incidents in which crowds outside the lecture hall have made it impossible for the invited speaker to be heard inside the hall?

Posted by Howard Wasserman on August 19, 2017 at 05:11 PM in First Amendment, Howard Wasserman | Permalink | Comments (4)

Tuesday, August 15, 2017

Random thoughts for the day

Two items for the morning, not particularly related.

1) President Trump is "seriously considering" pardoning  Arizona Sheriff Joe Arpaio, who was convicted of criminal contempt for repeatedly ignoring injunctions against his department's Fourth Amendment-violative practices. Trump believes Arpaio has been a strong actor against illegal immigration. But Arapio's department was found to have engaged in systematic constitutional violations and then Arpaio intentionally and repeatedly disregarded court orders designed to stop that behavior. So it seems to me this pardon signals a lot--that federal, state, and local officials can be freer to ignore civil rights injunctions and that Trump, who does not hold the federal judiciary in much regard, may resist both obeying and enforcing future injunctions.

2) In the wake of Charlottesville, there has been discussion about driving into crowds of liberal protesters who move into the streets, with several states proposing laws that would immunize drivers for doing so. Florida's bill would 1) make it a second-degree misdemeanor for a person to "obstruct or interfere" with street traffic "during a protest or demonstration" for which there was no permit and 2) immunize any driver who unintentionally injures or kills someone who was in the street in violation of the first section.

My question: Does such a law violate the First Amendment? Florida law already prohibits obstructing public streets (it is a pedestrian violation), so this law would impose special heightened penalties when the obstruction occurs during an unpermitted protest or demonstration. Florida is a comparative negligence state, so a driver who unintentionally injures or kills someone who is wrongfully in the street (e.g., crossing against the light) may bear some liability for his negligence--unless the victim was in the street during an unpermitted protest or demonstration. In other words, the penalty for obstruction is greater and the protection against negligent drivers less when the person was in the street for expressive purposes than other purposes. This sounds like what Marty Redish and I called a "gratuitous inhibition on speech"--a law that treats more harshly activity done for expressive purposes than for non-expressive purposes.

Posted by Howard Wasserman on August 15, 2017 at 10:14 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (14)

Friday, August 11, 2017

First Amendment procedure

Sarah Palin sued The New York Times for defamation over a June editorial (following the congressional ballgame shooting) that linked Palin's rhetoric to the 2011 Gabby Giffords shootings. Palin alleges The Times writers acted with actual malice, in part because the paper had published numerous news stories showing there was no link between Palin's rhetoric and Jared Loughner. The Times moved to dismiss, arguing that the complain did not plausibly plead actual malice. In a brief order yesterday, Judge Rakoff ordered the author(s) of the editorial to appear at an evidentiary hearing next week, for questioning about their awareness of these prior news stories.

The prevailing view among civ professors online seems to be that the order is inappropriate.

The point of Twiqbal is that a plaintiff must plead sufficient facts, without the benefit of discovery, to allow a reasonable/plausible inference of the elements of a claim. If the plaintiff cannot do that, the complaint must be dismissed and, perhaps, the plaintiff given a chance to replead. That is a problem for facts such as actual malice, that go to the defendant's state of mind, but that is the regime the Court has set-up. The court has discretion to convert a motion to dismiss to a motion for summary judgment if matters beyond the complaint (such as testimony) are considered. But Judge Rakoff did not do that here. He is using this testimony, not including in the complaint, to rule on a 12(b)(6). Unless, of course, he converts later, although conversion must include notice and an opportunity to present material, which might require an opportunity to take discovery.

This case somewhat illustrates the problems with the Twiqbal regime. Courts are supposed to decide plausibility based on "judicial experience and common sense," which essentially requires a form of judicial notice. We might understand Rakoff as trying to enhance his experience and common sense, one of many work-arounds courts have developed. But the point of Twiqbal is to keep defendants from having to deal with any discovery, even a few hours of testimony. Rakoff seems to be trying to have it both ways--get enough information to evaluate the factual assertions, without deeming the complaint sufficient (which it seems to be) and allowing the case to move forward to full (or at least sectioned) discovery. To the extent Rakoff is doing something necessary to make an intelligent plausibility determination, it reveals the problem and impossibility of implementing such a standard at the pleading stage.

This offers a nice example of when a party might be tempted to use a writ of mandamus to challenge an interlocutory order. Mandamus is limited to exceptional circumstances in which the trial court clearly overstepped its bounds. Ordering discovery before deciding a motion that is designed to keep cases out of discovery might qualify. The drawback, as someone pointed out, is that a mandamus requires The Times to formally sue Judge Rakoff (or the Southern District), who will preside over this litigation; a party's reluctance to wield this tool is understandable.

Alexi Lahav has a new paper describing how courts disregard the FRCP's procedural design (complaint/dismissal/discovery/summary judgment), but moving pieces and skipping steps. This seems another example.

Posted by Howard Wasserman on August 11, 2017 at 12:16 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (4)

Sunday, August 06, 2017

Commercial Photography in Public Parks--Is Police Presence Required?

Is a municipal ordinance requiring all businesses, including commercial photographers, to get a permit to use a public park a prior restraint subject to strict scrutiny? No, said the Eighth Circuit in Josephine Havlak Photographer, Inc. v. Village of Twin Oaks, 2017 WL 3159678 (8th Cir. 2017). There, the court upheld the ordinance as a content-neutral time, place, and manner regulation subject only to intermediate scrutiny. In doing so, it applied the “narrowly tailored” prong of that constitutional standard very leniently, based on a Missouri municipality’s assessment that police presence should attend all commercial activity in public parks. This conclusion strikes me as dubious, and it also strikes me that the court's application of intermediate scrutiny looks a lot more like rational basis scrutiny than it ought. Here's a summary so you can judge for yourself.

The case involved a commercial photographer who brought facial and as applied challenges against a municipal ordinance requiring those wishing to engage in any commercial activity in a public park to seek a permit before doing so. The waiting period for a permit was two days for small-group events and fourteen days for larger-group events. The photographer asked for injunctive and declaratory relief, contending that the permit scheme created by the ordinance was a prior restraint subject to strict scrutiny. Both a federal district court and the Eighth Circuit court of appeals disagreed.

The Eighth Circuit first rejected the argument that a facial challenge was appropriate, because the challenger had failed to show how it would “significantly compromise recognized First Amendment protections of parties not before the [c]ourt.” The challenger’s arguments  centered only on “her own commercial photography” and failed to show how the ordinance would affect any other speech or speakers protected by the First Amendment. Presumably, her arguments would apply to all other commercial photographers wishing to use the park, but the court did not find this argument sufficient to create standing for a facial challenge. Therefore, the court instead addressed only whether the ordinance was unconstitutional as applied to her.

The first step in this analysis was determining whether the ordinance was content-based or content-neutral. The court determined it was the latter based on its text and purpose. The text of the ordinance did “not reference any specific commercial enterprise or any specific message,” and it applied equally “to commercial photographers and to hot dog vendors.” Nor was there any evidence that the ordinance had a “content-based purpose,” since the ban on commercial activity had a long history and was for the purpose of reducing park congestion and maintaining visitor safety. Finally, even though the ordinance discriminated between commercial and non-commercial photographers, there was no evidence that commercial photographers were disfavored speakers; the court therefore concluded that any burden on the speech of the challenger as a commercial photographer was purely incidental to regulation of commercial activity within the park.

Because the ordinance was content-neutral, the court treated the permit scheme it created as a time, place, and manner restriction on speech; therefore, the proper standard for judging the ordinance’s constitutionality was whether it was “narrowly tailored to serve a significant governmental interest” and “[left] open ample alternatives for communication.” The photographer challenging the ordinance conceded that reducing park congestion and maintaining safety were significant governmental interests, but made four separate arguments that it was not narrowly tailored. First, the challenger contended that the ordinance was not narrowly tailored because the Village had not created a permit exception for commercial photography of small groups. The court held that the lack of a small-group exception did not invalidate the ordinance given the record evidence of “high demand, [a] history of congestion, and the limited facilities of the park.” The court also rejected the challenger's second argument that the ordinance should have focused only on known “congestion points” frequented by commercial photographers. This argument, according to the court, ignored that other commercial vendors might cause congestion at other points, making it rational for the Village to “globally promote maximum use of park resources and protect against damage to all park facilities.”

The third argument rejected by the court was that the ordinance’s “two-day application period (for events of fewer than ten people) and the 14-day period (for larger groups) [we]re not narrowly tailored because they serve[d] to chill artistic expression.” The court noted that commercial photography is typically planned in advance, giving photographers plenty of time to obtain the required permits, and the permit period were chosen to give the Village the time needed to process and, if necessary, review permit applications.  Finally, the court rejected the argument that the ordinance was not narrowly tailored because the $100 administrative fee charged by the Village was too high. According to the court, the Village hired police officer to watch over commercial activities in the park, and the court therefore found a “direct correlation” between the fee and the costs incurred by the Village. The court assumed, without further analysis, that the Village had made a rational decision to provide police to watch over hot dog vendors and commercial photographers and concluded that the $100 fee, which very well might be cost prohibitive for some commercial photographers, to be narrowly tailored to making the park secure. The court emphasized that because only intermediate scrutiny applied, narrow tailoring did not require that the Village choose the least restrictive means but instead required only that “the means chosen are not substantially broader than necessary to achieve the government's interest.” This standard was met.

 The court also found that the photographer had ample alternatives because “the natural attributes of the part exist[ed] in multiple locations across the Saint Louis area.” The photographer was not entitled to her “ideal venue” but merely to “ample alternative channels for communicating her message.” Apparently, any natural setting in the Saint Louis area would do.

Finally, the Court addressed the criteria imposed by the ordinance for issuing a permit (or license). Although the challenger argued that the ordinance’s vague criteria gave the Village unbridled discretion to deny permits, the Court held that the scheme imposed “objective factors” and “articulated standards,” such as “the nature of the activity, potential conflicts with other scheduled events, the number of participants, and other factors relevant to resource allocation.” None of the criteria for issuing a permit were content-based, and the ordinance’s plain language essentially guaranteed approval for small-group events and conditioned approval for larger events only on content-neutral factors related to “park use and safety.” Therefore, the Court held that the ordinance met “constitutional scrutiny as-applied [stet]” to the commercial photographer.

 

Posted by Lyrissa Lidsky on August 6, 2017 at 03:31 PM in Constitutional thoughts, First Amendment, Lyrissa Lidsky | Permalink | Comments (2)

Sunday, July 09, 2017

Citizen video and other § 1983 puzzles

In Fields v. City of Philadelphia, the Third Circuit joined the parade of courts of appeals recognizing a First Amendment right to record police in public in a non-interfering way, subject to time, place, and manner limitations. It is now the Fifth, First, Seventh, Eleventh, and Ninth Circuits, with none going the other way (prior to this, the Third Circuit had avoided the issue by twice holding that the right was not clearly established without addressing the merits). The case arose from two separate actions--one by a woman who was physically moved and held to keep her from recording the arrest of a protester, the other by a man who was arrested and charged with obstructing a public passage for recording officers from a sidewalk across the street.

Two thoughts.

In explaining the need for and importance of this First Amendment right, the court included this line: "To record what there is the right for the eye to see or the ear to hear corroborates or lays aside subjective impressions for objective facts. Hence to record is to see and hear more accurately." Recent experience with body cameras and police shootings shows this statement, at least in the absolute form presented in the first sentence, is wrong. Not that recording is not or should not be protected; only that it does not present "objective fact" or eliminate subjectivity. In fact, subjectivity likely is why the police officers involved in the incidents in this case stopped the plaintiffs from recording--they did not want video getting out that could be viewed by the public in an adverse way, even if they might have found a way to explain it away.

Second, this decision may be as significant for its discussion of § 1983 doctrine, showing how qualified immunity makes damages liability difficult, if not impossible.

The City asked the court to pretermit the merits and grant qualified immunity (as had two prior Third Circuit panels) because the right was not clearly established. The court declined to "take the easy way out." In justifying this approach, the court pointed to several considerations that SCOTUS identified as benefits to merits-first: the importance and frequency of the constitutional issue, the need of police departments for guidance on the issue, the purely legal, non-fact-bound nature of the issue, and the quality of the briefing (with amicus briefs from several advocacy organizations, a group of First Amendment professors, and DOJ's Civil Rights Division).

Nevertheless, after recognizing the right, the majority held that the officers were entitled to qualified immunity because the right to record was not clearly established. There was no Third Circuit precedent and precedent from other circuits and from district courts was factually distinguishable (some of those cases based the right on the presence of expressive intent by the recorder, while the Third Circuit recognized a right to record, regardless of what the recorder planned to do with the recording). The court also refused to find the right clearly established based on Philadelphia Police Department policy recognizing a First Amendment right to record. The problem was that the plaintiffs sought municipal liability based on the failure of those policies to effectively instruct officers about this right; if the policies were ineffective, then they could not clearly establish the right so any reasonable officer would know there was a First Amendment right to record, as most officers did not know of the right.

Judge Nygaard dissented on qualified immunity. He argued that the right was clearly established given the unanimity in other circuits, Department policy, and 2012 DOJ recommendations that local departments establish policies to affirmatively set forth the First Amendment right;* those three things placed the right to record "beyond debate" and placed officers on unambiguous actual notice that they must allow members of the public to record their activities. Nygaard also argued that a reasonable officer's "lived experience" informed him of the pervasiveness of recording devices and their routine integration into daily lives, with the resulting First Amendment implications.

[*] Recent consent decrees with cities such as Ferguson and Baltimore included provisions requiring police departments to recognize and not interfere with the First Amendment right to record in public.

The majority's analysis demonstrates the unfortunate breadth of qualified immunity. Factual distinctions are always possible with precedent--the Third Circuit had previously accepted (or at least had not flatly rejected) that there might be a meaningful distinction between filming a sidewalk encounter and filming a traffic stop. It thus is possible that this decision will do nothing for the next case in which an officer prevents someone from recording, if the officer can find some small distinction to the incidents in this case--the recorder was on the same side of the street rather than across the street, the person was momentarily stopped from recording but not arrested, the plaintiff was recording a physical altercation rather than an arrest. The possible distinctions are boundless.

I also do not buy the reasons the majority rejected reliance on department policy as a basis to clearly establish the right. There is nothing inconsistent with saying that department policy should have placed a reasonable officer on notice that there was a constitutional right to record (thus clearly establishing the right) and that department policy was constitutionally insufficient because officers were ignoring it and department officials were not providing further training (thus establishing municipal liability). They go to different issues involving different standards.

On the other hand, SCOTUS' recent string of summary reversals rejects the big-picture approach to qualified immunity that the dissent took in relying on broad legal principles divorced from specific facts, with no applicable SCOTUS precedent. So while normatively preferable, Judge Nygaard's approach would  draw more attention and a possible summary reversal.

Posted by Howard Wasserman on July 9, 2017 at 10:31 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Wednesday, June 21, 2017

Beckman v. Chicago Bears

Russell Beckman is a Green Bay Packers fan who holds season tickets with the Chicago Bears only so he can attend the Bears-Packers game. Season-ticket holders earn points allowing them to purchase "experiences," including going onto the field during pre-game warmups. But the Bears prohibit these fans from going onto the field in the opposing team's gear; they would not let Beckman participate during the Bears-Packers game last season, and, he alleges, will not let him do it at the game next season. Beckman has sued the Bears, alleging that the no-opposing-team-gear rule violates the First Amendment and seeking an injunction against enforcement of the policy. Beckman is appearing pro se (he and I exchanged emails about the situation a few weeks ago).

The Bears play at Soldier Field, which is owned by the Chicago Parks District and rented to the team for its use. That, I believe, raises the possibility the Bears act under color. If the case involved the Bears stopping fans from wearing opposing-team gear in the stands, this would be an easy case, with the Bears subject to Burton's symbiotic relationship test, just as the New York Yankees were at the old Stadium. But I have been reluctant to say that teams playing in publicly owned arenas act under color for all purposes, as opposed to for the limited purposes of operating expressive fora (the stands, press access, etc.). A team should retain leeway in its organization and operations, including its interactions with customers. Playing at a publicly owned arena would not stop the Bears from being viewpoint-discriminatory in, for example, deciding what people could wear or who could attend a Lake Michigan cruise for ticket holders. The question is where the playing field (ordinarily not part of the expressive forum) falls on the spectrum. I am not sure I know the answer to that question.

Interestingly, the Yankee Stadium lawsuit was brought by the NYCLU in conjunction with NYU's Civil Rights Clinic. It is surprising (telling?) that neither the Illinois ACLU nor a Chicago-based clinic would take this on. Did Beckman never ask around? Does it say something about how that state-action question will be resolved when we move from the stands to the field?

Or are Green Bay Packers fans less popular in Chicagoland than Nazis?

Posted by Howard Wasserman on June 21, 2017 at 11:58 AM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (0)

Monday, June 19, 2017

SCOTUS Symposium: Happy talk and revolutions of historic proportions

I am going to discuss the two free speech cases--Matai v. Tam and Packingham v. North Carolina--together as unanimous, broad reaffirmations of a libertarian, highly protective model of free expression.

A couple of interesting points:

1) Justice Kennedy and Justice Alito in some kind of tit-for-tat? Alito wrote the Opinion for the Court in Tam, but Justice Kennedy did not join pieces addressing government subsidies, government programs, or commercial speech. He wanted to hang his analysis on viewpoint discrimination, which rendered unnecessary discussion of those other issues; even commercial speech cannot be restricted on viewpoint-discriminatory bases.  Kennedy at least tried to praise the pieces of the Alito opinion that he joined, especially on viewpoint. Meanwhile, Justice Kennedy wrote the Opinion for the Court in Packingham, but Justice Alito did not join the opinion (he concurred only in the judgment) because of its "undisciplined dicta," "loose rhetoric," and failure to "heed its own admonition of caution" regarding the internet.

It is not surprising that Kennedy would take a broader approach to free speech than Alito or that Alito might bristle at Kennedy's speech-protective rhetoric. What is somewhat surprising is how the rest of the Court divided. In Tam, Ginsburg, Sotomayor, and Kagan went with Kennedy; in Packingham, the Chief and Thomas went with Alito.

This brought to mind one similarly divided free-speech case in United States v. Alvarez; there, the Chief, Ginsburg, and Sotomayor followed Kennedy's  broader and looser approach, while Kagan (with Breyer) followed a narrower course (Alito and Thomas dissented). So we see in these cases a slight shift in who is willing to pursue the broadest free-speech approach. I am not trying to overread anything, because every case is different. But these were interesting lineups.

2) I want to highlight Rick's argument (an idea I have seen reflected elsewhere) that the paeans to viewpoint neutrality in both Tam opinions signal where the Court would come out on public controversies over offensive or outrageous speech--racist speech on campus, hate speech, severed heads, productions of Julius Caesar, etc. And it seems everyone on the Court is on a similar page as to offensiveness and viewpoint discrimination.

3) On that point, note how broadly both opinions in Tam define viewpoint discrimination. It is not enough to allow "both sides to speak;" the First Amendment requires that both sides be allowed to utter the full range of views in the manner of their choosing. As Justice Kennedy put it, "a subject that is first defined by content and then regulated or censored by mandating only on sort of comment is not viewpoint neutral;"[m]andating positivity"--allowing every side to say nice things about everything but not say mean things about everything--still is viewpoint discriminatory. In other words, it is viewpoint discrimination to prohibit critical speech, even if both Republicans and Democrats are prohibited from criticizing. Or as Justice Alito explained, the challenged provision "is not an anti-discrimination clause; it is a happy-talk clause." And mandating happy talk is viewpoint discriminatory.

4) Justice Kennedy's Packingham opinion is about the communicative "revolution of historic proportions" that is the internet--the "forces and directions of the Internet are so new, so protean, and so far reaching that courts must be conscious that what they say today might be obsolete tomorrow." Justice Alito's Packingham opinion is about the "dark internet" in which bad people are lurking on web sites.

5) Part II of the Alito opinion in Tam addressed and rejected Tam's argument that the disparagement clause did not apply to disparagement of groups of persons as opposed to individual real or juridical persons. It considered this despite Tam not raising it below and despite the Court declining to grant cert on it when presented in the opposition to cert. The Court justified this on avoidance grounds. But does that mean that even an unpreserved statutory argument is always subsumed in a grant on a constitutional issue? Justice Thomas did not join this piece of the opinion.

Posted by Howard Wasserman on June 19, 2017 at 07:59 PM in 2016-17 End of Term, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Sunday, June 18, 2017

More heckling

Great essay in The Atlantic by Thomas Healy (Seton Hall) arguing that some of the non-violent "intense pushback and protest" against right-wing speech on campus is itself constitutionally protected counter-speech, the Brandeisian remedy to be applied. Healy consider heckling as part of this:

Heckling raises trickier questions. Occasional boos or interruptions are acceptable since they don’t prevent speakers from communicating their ideas. But heckling that is so loud and continuous a speaker literally cannot be heard is little different from putting a hand over a speaker’s mouth and should be viewed as antithetical to the values free speech.

I have argued that some heckling is protected expression and where we draw that line raises an important First Amendment question. I have not yet figured out where that is, although I do not believe it is loud and continuous heckling, at least without knowing more--such as where the heckler is viz a vizt the speaker and the nature of the spaces in which both speech and counter-speech are occurring. But it is good to see someone stake out the basic position that protesters shouting over an objectionable speaker are not censors but themselves participants in a messy debate.

Posted by Howard Wasserman on June 18, 2017 at 11:19 PM in First Amendment, Law and Politics | Permalink | Comments (10)

Wednesday, June 14, 2017

Vehement, caustic, and sometimes unpleasantly sharp

This is correct.

Posted by Howard Wasserman on June 14, 2017 at 05:50 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (8)

Sunday, June 11, 2017

@realDonaldTrump as public forum and state action

Last week, the Knight First Amendment Institute at Columbia University has written an open letter to President Trump on behalf of two people blocked from Trump's Twitter account, apparently for posts criticizing or mocking the President. The letter argues that the account is a designated public forum, from which people cannot be excluded for viewpoint-discriminatory reasons. Eugene Volokh questions the conclusion, doubting that Trump is using the account as a government official rather than as an individual who holds public office although admitting it is an unexplored border area, and narrowing the concept of the speech restricted to the opportunity to engage in comment threads. Noah Feldman rejects the entire premise of the Knight Institute's letter because Twitter, a private actor, banned the users.

I disagree with Feldman's conclusions, although it raises some interesting state action/under color of law questions. The relevant fact is that Trump commanded Twitter to ban block these speakers. And the claim is that Trump violated the First Amendment; Knight is not suggesting that Twitter violated the First Amendment. In any action against Trump, the challenge would be to his under-color decision to block them; it would be irrelevant that the block was carried out by a private actor following Trump's command. By analogy, if the President rented a private space for a public event and ordered private security to keep certain people out based on their viewpoint, the violative act is the order to keep them out, regardless of who carried it out.

And it gets kind of interesting if Knight were to go after Twitter. A private actor may be under color when it performs a traditional and exclusive government function and when it acts under government compulsion to perform a violative act. If Trump is acting as President in managing @realDonaldTrump, the violative act of blocking the users is done under Trump's command or compulsion. And the President arguably has delegated control and management of a public forum--a government function--to private actors. Both of those facts should make Twitter under color of (federal) law.

Posted by Howard Wasserman on June 11, 2017 at 06:59 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (1)

A different scope-of-injunction question

The Texas Department of Health and Human Services enacted a regulation requiring clinics to bury or cremate fetal remains; a district court enjoined enforcement of the regs. The Texas legislature then passed (and the governor signed) a comprehensive statute imposing new abortion limitations, including requirements that clinics bury or cremate fetal and embryonic remains (§ 697.004). Slate's Mark Joseph Stern argues that this move is "treading dangerously close to a conflict with a federal court order." He explains:

Technically, SB8 does not directly conflict with Sparks’ injunction, which only prevents the state from implementing the Health and Human Services rule. In practice, though, the law looks a lot like defiance of a federal court order. By way of analogy, imagine if a court struck down Texas’ constitutional amendment outlawing same-sex marriage and the legislature simply replaced it with an identical statute. That game of whack-a-mole might be hypothetically legal, but it would also be constitutionally indefensible.

Stern interviewed a lawyer from the Center for Reproductive Right who said the district court's decision would "seem to clearly proscribe this law," but declined to discuss their litigation strategy for responding to the new law.

Is this right?

In a judicial-departmentalist world, a state government can disregard judicial precedent but cannot disregard a court order. A court order halts "this conduct" by "this defendant" (and those working with this defendant)  as to "this plaintiff." The question is what is "this conduct" when talking about attempts to restrict reproductive choice and an action seeking to enjoin that restriction. The answer depends on whose perspective we adopt. From the plaintiff's standpoint, it is the state seeking to require it to do something (dispose of fetal remains) in a way that injures its business and deprives its female patients of their Fourteenth Amendment rights. From the defendant's standpoint, each involves different forms of government conduct and the enforcement of different legal rules that must be scrutinized and analyzed separately in determining constitutional validity. We can do the same with Stern's same-sex marriage hypothetical. From the defendant's standpoint, these are distinct legal enactments and enforcement of distinct rules that must be scrutinized and analyzed separately in determining constitutional validity. From the plaintiff's standpoint, the state is prohibiting her from doing something (marry a same-sex partner) in a way that deprives her of her Fourteenth Amendment rights.

My inclination is that we look from the government's perspective and that this does not implicate the existing injunction. The government acts through grants of authority to enforce legal rules. And enforcement of a different legal rule from a different source is a different action, even if the rules are identical, even if they injure the same people in the same way, and even if they share the same constitutional defects. HHS enforcing a regulation is a different official action than HHS enforcing a statute. There also is the possibility that the government would argue that a statute should get greater deference or leeway than an administrative regulation. I would reject the argument in this context--if it imposes an undue burden, it does not matter who in the state enacted the ruel--but it is something Texas could argue. And that makes the statute different than the reg and thus not a violation of the injunction.

The difference is largely procedural--how, in an ongoing litigation (the parties are under preliminary injunction but no final judgment has been entered), to challenge the constitutional validity of the new law. If enforcing the statute represents the same governmental conduct as enforcing the reg, the plaintiff can proceed via a motion to enforce the injunction, perhaps along with a motion for contempt. If this is different government conduct, the plaintiffs must proceed via a motion to "extend" the injunction, likely in conjunction with an amended complaint adding a new constitutional claim against enforcement of the new legislation.

So I believe the answer is straightforward. But it presents a different issue for how we determine the scope of an injunction in constitutional cases--looking not only to the parties,  but also the legal rule challenged.

Posted by Howard Wasserman on June 11, 2017 at 03:47 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (6)

Thursday, June 08, 2017

Expressive legislation, legitimacy, and judicial departmentalism

Sherry Colb discusses pending Texas legislation that would ban Dilation-and-Extraction (D&E), the most common method of second-trimester abortions. If enacted, the law would restrict second-trimester abortion to a degree that it almost certainly would constitute an invalid undue burden on reproductive freedom under current Fourteenth Amendment doctrine and almost certainly will be declared invalid and unenforceable by the courts. Colb wonders why Texas would enact legislation so obviously likely to lose in court (noting how common it is for states to do this with abortion legislation) and argues that such legislation is a form of expression for the legislators. She  labels such practices "potentially legitimate but generating discomfort and possible problems;” it depends on how long the law would be in effect and how likely it is to have a chilling effect on Fourteenth Amendment liberties in the lag between enactment and injunction. Legislation-as-expression is better than violence, but inferior to other forms of anti-choice speech that would not have the same practical effect on doctors and women in Texas.

Colb does not mention or consider that the Texas legislators and governor (presumably) believe such legislation is constitutionally valid. This is where the model of "judicial departmentalism" I have been urging comes into play. Because the judicial interpretation or understanding of the Fourteenth Amendment does not bind any other branches, Texas lawmakers  remain free (and act consistent with their oaths) to act on their own constitutional views and understandings, even if those views run contrary to those of the judiciary. What they are doing here is in no way illegitimate and should not be regarded as such. It instead is what coordinate constitutional actors are entitled, and expected, to do--change the law of Texas to match their policy preferences (and, presumably, those of their constituents) and their constitutional vision.

Colb is right that a court, bound to follow the judicial understanding of the Fourteenth Amendment, will declare this law invalid and enjoin its enforcement. And she therefore is right that the practical effect of such legislation at the moment is symbolic and expressive, except to the extent that it sets-up an opportunity to argue for a change in judicial doctrine. In fact, laws such as this represent the only way to change judicial doctrine, making them not only legitimate, but necessary to the development of constitutional law. So judicial departmentalism recasts Colb's argument--in practice it is symbolic, in theory it should not be derogated as only contingently legitimate. It is not that Texas is ignoring the courts, but that Texas' constitutional vision conflicts with that of the federal courts. Neither party acts illegitimately in following its vision.

Posted by Howard Wasserman on June 8, 2017 at 07:02 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Sunday, May 07, 2017

Opening up broadcast indecency

At the end of the day, the minor controversy over the FCC's "inquiry" into Stephen Colbert's "cock-holster"* joke is going to be a lot like people in the administration talking about "opening up the libel laws"--a lot of noise that will never be put into any legal effect and cannot be taken seriously.

[*] As George Carlin reminded us, "cocksucker" is one of the words you cannot say on television. It is not clear that the word "cock," standing alone, falls in the same category.

The ban on indecent speech on broadcasting is 6 a.m.-10 p.m., so Colbert (at 11:30 p.m.) operated in a zone in which indecent speech is not legally prohibited. Colbert and CBS thus can be punished only if his joke was obscene under Miller. But we are past the point that written words alone can be held legally obscene, given how community values have evolved in understanding what is patently offensive. And that is before we get to the fact that the comment was a joke about the President of the United States, so it has serious political value. Frankly, I doubt this comment would be deemed punishable indecency, even if broadcast outside the safe harbor. If it could not be indecent, no way could it be obscene.

Still, I found this Fortune story by Aric Jenkins both wrong and problematic. The author objects to calling an FCC investigation "censorship," insisting that it is merely following standard operating procedure in logging and reviewing complaints. Plus, the author insists, any "penalty would be monetary — not any form of censorship." Again, I thought we long ago left behind the idea that post-publication punishment is not a form of censorship of speech. And I wonder if Mr. Jenkins would be so sanguine if the federal government established standard operating procedures for reviewing complaints about his articles and imposing a monetary penalty on them--would he insist that this is not censorship.

Posted by Howard Wasserman on May 7, 2017 at 05:21 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (0)

Thursday, May 04, 2017

Sport and speech, part 766

Two news stories, submitted largely without comment:

1) The Boston Red Sox banned a fan from Fenway Park for life for using a racial slur in a conversation with another fan, describing the Kenyan woman who had sung the national anthem. The fan who heard the slur complained to an usher, the speaker was removed from the park, and on Wednesday the team announced the ban.* The Red Sox are private and there is not even a whiff of public funding surrounding Fenway Park, so the First Amendment is nowhere in play. But let's suppose, just for sake of argument, that there were state action. How is this not protected speech? It is not incitement. It is not fighting words, because an insult about someone else is not likely to induce the listener to punch the speaker in the face. There is no general "harassment" exception to the First Amendment, and even if there were, I am not sure it would apply for the same reason this is not fighting words.

[*] Separate question: How do they enforce the ban? Tickets do not have names on them and we do not have to show ID to enter a ballpark. Will his picture be posted at every entrance? And will ticket-takers have the time or patience to look when 35,000 are streaming through the turnstiles?

2) LSU ordered its student-athletes to abide by certain guidelines when participating in any protests of the decision not to bring civil rights charges against the police officers involved in the shooting of Alton Sterling. Among the guidelines (although phrased as a request) is that they not where LSU gear or branding while engaging in these activities. To its credit, the Athletic Department expressed its "respect and support" for the players' right to speak. They just want to control what the athletes wear--itself a form of expression--when they speak.

Posted by Howard Wasserman on May 4, 2017 at 12:11 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (21)

Monday, April 24, 2017

Counter-speech or heckler's veto?

There are some troubling aspects to this edition of FIRE's So to Speak podcast on the Manhattan Institute's Heather MacDonald being a victim of a heckler's veto. MacDonald was shouted down at Claremont-McKenna College, where she had been invited to give a talk on her new book on policing. In the interview, she describes speaking to an empty room, because student protesters outside had blockaded the entrance, and the talk ending early because the university refused to let police disperse the protesters. MacDonald wrote about her experiences.

My free-speech positions generally align with FIRE's, so I was surprised by the problems I found with the discussion:

1) It does not appear they have grappled with the protected nature of some of the protesters' activities (MacDonald allowed at one point that they were "arguably" within First Amendment protection). All heckling seems to constitute a heckler's veto in their telling. Except heckling a speaker is constitutionally protected, including to the point of trying to shout down or drown out that speaker, with the hope that she will give up and go away. (I like to point to the scene in Casablanca with the competing songs). So is asking snarky questions during the Q&A. So is pounding on drums and chanting. There is a line to be drawn somewhere and I admit to not knowing precisely where that is. Blockading the entrance or pounding on the glass is over the line. So is invading the speaker's space or trying to grab the microphone. But shouting from across the way must be protected. And there is an ocean between those.

The  undercurrent to the interview is that the First Amendment (as opposed to civility or a Platonic ideal of polite exchange of ideas) requires those who oppose ideas to allow those ideas a polite hearing. But this privileges the position of the invited speaker (MacDonald) to say what she wants and she wants to, imposing  on others to give her a polite listen and only engage in counter-speech (supposedly the remedy to be applied) on her terms. Rather, counter-speech, no less than "original" speech, may be vehement, caustic, and unpleasantly sharp. Counter-speech, no less than "original" speech, can produce the verbal tumult, discord, and dverbal cacophony that is not a sign of weakness but of strength.

Again, do not hear me as saying that the protesters were entirely in the right. Only that there is a First Amendment element that went almost entirely unacknowledged throughout the interview and MacDonald' narrative.

2) At one point the podcast host describes the right to free speech as a two-sided coin--the right of the speaker to speak and the right of willing listeners to listen, both of which were undermined by the protesters. But this, again, ignores the third side (making this a triangular dreidel?) of the rights of the protesters to counter-speak.

3) A different theme in MacDonald's comments, especially in the interview, is that she is in the right because the protesters attempting to shout her down are "arrogant" and "ignorant" (and arrogant in their ignorance). They are wrong about Black Lives Matter and the problem of police-involved shootings. And if they only knew what she did--such as the story of one elderly person in Chicago who would like to see a greater police presence--they would shut up and listen to her. And their failure to shut up and listen to her and her correct ideas (as opposed to their ignorant ones) represents their abandonment of respect for the First Amendment.

4) MacDonald called out the CMC faculty for not getting involved. Her solution is that when a controversial speaker is coming to campus, faculty members should take class time, regardless of subject, to give a talk to students explaining that they are expected to "maintain the highest ideals of civilization, which is rational discourse." That lecture should take place in a chemistry class or a philosophy class or a literature class.

But isn't the great conservative criticism of academia and academic that professors ignore what they are supposed to be teaching in the classroom (the atomic weight of Bromide or whatever) to instead "brainwash" (a word MacDonald used several times in the interview) students about that prof's favored political ideals. That seems to be what MacDonald is urging here. Except instead of brainwashing them about Marxism, she wants them to brainwash them about her vision of free expression. So I guess it is ok, as long as the professor is brainwashing the student about MacDonald's preferred political ideal.

5) Somewhat related, I would flag this piece in the Chronicle of Higher Ed (subscription required) by my colleague Stanley Fish, who attempts to separate the values of the university from free speech values. He argues that the guest speakers and protests and everything else have nothing to do with academic or university values. They represent political speech to which the university has chosen to open its doors and spaces. Which is fine, but has nothing to do with academic freedom or the core purposes of a university.

6) And this post from Max Stearns' Blindspot, which develops a "vaccine" theory of public debate, in which there is value to exposure to small amounts of noxious ideas. Again, as a model of public debate, this is interesting. But it leaves many open questions about how to account for counter-speech within a model of First Amendment jurisprudence.

Posted by Howard Wasserman on April 24, 2017 at 09:31 AM in Constitutional thoughts, First Amendment, Law and Politics | Permalink | Comments (13)

Sunday, April 16, 2017

Donald Trump's First Amendment

This tweet from early this morning captures it: Someone should look into who paid for the small organized rallies yesterday. The election is over!

Let's break this out:

• There is something wrong with people paying or accepting money to engage in First Amendment activity. The source of the funds should be investigated, disclosed, and (perhaps) sanctioned.

• There is something wrong with organized rallies or other peaceable assemblies.

• The only opportunity people have to express their political preferences is during an election. Once the election is over, the First Amendment runs out and it is inappropriate to take to the streets to criticize the President.

Posted by Howard Wasserman on April 16, 2017 at 05:29 PM in First Amendment, Howard Wasserman | Permalink | Comments (10)

Monday, February 27, 2017

Commercial Marijuana Advertising and the First Amendment

Many states that have legalized the commercial sale of marijuana have also sought to restrict commercial marijuana advertising. For example, Colorado prohibits licensed retail marijuana stores from advertising on television programs unless the stores have “reliable evidence that no more than 30 percent of the audience for the program on which the Advertising is to air is reasonably expected to be under the age of 21.” Colorado imposes similar restrictions on print and internet advertising. (Colorado’s advertising restrictions can be found here, in Rules 1102-1115). Until recently, at least one medical marijuana state (Montana) had banned all commercial marijuana advertising.

State advertising restrictions are motivated primarily by concerns that the commercial marijuana industry might seek to promote marijuana consumption by minors, similar to the way that the alcohol industry once (still?) promoted underage consumption of beer. Indeed, some of Colorado’s advertising restrictions are directly modeled on advertising guidelines that various alcohol industry trade groups have voluntarily imposed on their members. See, e.g., the Beer Institute’s Advertising and Marketing Code.

But do government restrictions on commercial marijuana advertising violate the First Amendment?

 

The place to start is Central Hudson v. Public Services Commission, which establishes the test for government regulation of commercial speech. In relevant part, Central Hudson instructs that “[f]or commercial speech to come within [the protection of the First Amendment], it at least must concern lawful activity and not be misleading.” Any government regulation of protected speech must “directly” advance a “substantial . . . government interest”, and not be more “extensive that is necessary to serve that interest.”

Let me pose two questions to the blogosphere regarding the application of this test to commercial marijuana advertising:

  1. As a threshold matter, does commercial marijuana advertising concern “lawful” activity? The question is complicated by the fact that the production and sale of marijuana are “lawful activities” as a matter of state but not federal law. Indeed, the Montana state supreme court upheld that state’s (since repealed) outright ban on commercial marijuana advertising by finding that commercial marijuana speech was not entitled to any protection under the First Amendment because the federal government banned the drug (even if Montana did not). Alex Kreit has written a thoughtful piece espousing a similar position – i.e., suggesting that states have more leeway to restrict commercial marijuana advertising so long as the federal government bans production and sale of the drug. But should courts consider the federal ban when judging the constitutionality of state restrictions on commercial marijuana advertising? In other words, should a state have more leeway to restrict advertising of some activity it considers lawful just because the federal government bans the same?
  2. Assuming that commercial marijuana advertising is protected speech, do state restrictions like those outlined above pass the second part of the Central Hudson test? In other words, do state governments have a substantial interest in restricting such advertising, and is there any other way for states to address that interest?

I have my intuitions about how to answer these questions, but I'm not a First Amendment scholar and I'm curious how others would approach these issues. 

 

Posted by Robert Mikos on February 27, 2017 at 11:09 AM in Constitutional thoughts, First Amendment | Permalink | Comments (5)

Wednesday, February 22, 2017

Burning your own cross on your own lawn?

A couple in Stamford, CT had a racial slur spray-painted on their garage door. Convinced that the police are not doing enough to investigate the incident, they have refused to paint-over or cover the word. In response, the town is moving to cite them for having blighted property, which would result in a fine of $100/day. The NAACP has gotten involved, although the stories do not (yet) mention the First Amendment.

That citation and fine should raise First Amendment problems. Although the blight ordinance is content-neutral, leaving the word on the garage is expressive in several respects: 1) the word has obvious political content; 2) the homeowners can be seen as reappropriating someone else's hate speech;and 3) the purpose behind their actions is itself expressive, as an act of protest against what they see as police wrongdoing. Plus, the blight ordinance is not being applied content-neutrally here--the conclusion that the garage is blighted is justified only with reference to the content or message expressed by that word.

Posted by Howard Wasserman on February 22, 2017 at 06:01 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (6)

Friday, February 17, 2017

Liberal sportswriting

The Ringer's Bryan Curtis has a great piece describing the evolution of sportswriting into a liberal profession and sportswriters into a group of liberal professionals. I have thought about this in connection with athlete speech and political activism. If you go back to what many regard as the heyday of athlete activism, especially black athlete activism (the mid-'60s through early '70s, with Ali, Flood, Brown, Carlos, Smith, etc.), the opinions of sportswriters ran overwhelmingly and angrily against the athletes. Perhaps to a greater degree than Curtis describes in the piece. Worth a read

Posted by Howard Wasserman on February 17, 2017 at 09:31 AM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (0)

Saturday, February 04, 2017

Nationwide TRO bars enforcement of immigration order (Updated)

A judge on the Western District of Washington has issued a nationwide Temporary Restraining Order barring enforcement of the main provisions of President Trump's immigration executive order. The order is short (7 pages) and cursory and lasts only until the parties can brief the preliminary injunction, which presumably will receive fuller analysis. Josh Blackman has a quick analysis, with which I basically agree. At the same time, a judge in the District of Massachusetts refused to extend the TRO issued on an emergency basis last weekend.

Some quick highlights:

The lawsuit was brought by the states of Washington and Minnesota. The court seemingly accorded them parens patriae standing, although courts generally do not allow states to assert their citizens' rights--Virginia tried unsuccessfully to use it to challenge the Affordable Care Act). The court also finds harm to the state itself, through its public universities, tax bases, operations, and public funds.

Standing to one side, I cannot see how the EO violates the rights of either State. The constitutional defects in the EO are that it violates the First and Fifth Amendment rights of those who would be kept out of the country. So this must be third-party standing on behalf of residents, although I do not yet see the connection between either state and the rights-holders (apart from through parens patriae). As with the other TROs that have issued, the focus is far more on irreparable harm and far less on the merits. Maybe in the early days that is appropriate. But the success of these lawsuits seems to rest on courts finding that the government's power over immigration is less than it was 100 years ago, because rights of equality and religious freedom are greater than they were then. Perhaps they are. But there needs to be more discussion of this following a fuller hearing and more time.

The judge made the order nationwide (more accurately, universal), rejecting the government's argument that the order should be limited only to the two states, citing Texas v. US and the need for uniform immigration rules. The politics of who is seeking and defending these universal injunctions to one side, the need for uniformity cannot justify such orders. Disuniformity pendent lite is an inevitable, perhaps even intended, consequence of dividing the lower courts regionally. Different lower courts might disagree on the same issues, producing momentarily different law in different places. Uniformity arrives at the end of the day from SCOTUS, which is why the Framers mandated that Court at the top. If one regional district court (or one regional court of appeals reviewing that regional district court) has the power to resolve the issue for the entire country, there would be no need for SCOTUS; uniformity would come from whichever court got there (and ruled against the government) first. While this does create some possible confusion and uncertainty in the interim, which would look bad to the public, I do not see how you avoid that problem without altering the nature of regional courts and judicial remedies.

For what it is worth, I am less troubled than Josh is by Washington arguing for a universal injunction, when it explicitly argued against that in the Texas DACA litigation. This is why we have presumptively transsubstantive rules--so repeat players who might find themselves on either side of a dispute cannot sit on rules favoring one side or another.

As expected, the White House responded in its usual reasoned and even-handed way. A WH statement decried the "outrageous" order, although quickly re-issued the statement without the adjective. The President himself was not so reserved--he tweeted (and did not delete) about the "so-called judge" issuing the "ridiculous" opinion. Ah, the new "conversation among the branches." [Update: The President also cannot understand why the lawyers are not "looking at and using" the order from the District of Massachusetts. I assume Bannon or Miller will calmly explain binding v. persuasive authority to our fearless leader.]

Josh reports that the government is working on an appeal to the Ninth Circuit and SCOTUS. Note that this is not an appeal of the TRO itself (which is not subject to immediate review), but seeking a stay of the TRO. The analysis is similar, but not the same.

Update: The United States has appealed. It appears the argument is that this is a de facto preliminary injunction, even though designated as a TRO. Ninth Circuit precedent allows the court of appeals to look below the label, especially where the order lasts more than 14 days. Alternatively, the government may try to turn the appeal into a petition for writ of mandamus, a frequent end-run for interlocutors appeals. It appears that no stay was sought.

Update: The Ninth Circuit treated the appeal as a request for stay of the TRO. It denied the request for an immediate administrative stay, then ordered briefing by Monday of the request for a stay pending appeal. Beyond the stay request, it is not yet clear how the court of appeals is characterizing the district court's order and how that affects appellate jurisdiction.

 

Posted by Howard Wasserman on February 4, 2017 at 12:21 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (5)

Thursday, February 02, 2017

Teaching and Writing About Marijuana Law

Greetings, y’all, and thanks for having me! In the coming weeks, I’ll be blogging about one of my core areas of interest: marijuana law. In this first post, I want to share just a couple of the reasons why I find this is such a fascinating and worthwhile field of study.

For one thing, state marijuana reforms and the federal response to them have sparked some of the most challenging and interesting legal controversies of our day. May the states legalize a drug while Congress forbids it? Even so, are state regulations governing marijuana preempted by federal law? Does anyone (besides the DOJ) have a cause of action to challenge them as such? Can the President suspend enforcement of the federal ban? Do state restrictions on marijuana industry advertising violate the First Amendment? These are just a handful of the intriguing questions that are now being confronted in this field.

Just as importantly, there is a large and growing number of people who care about the answers to such questions. Forty-three (43) states and the District of Columbia have legalized possession and use of some form of marijuana by at least some people. These reforms – not to mention the prohibitions that remain in place at the federal level – affect a staggering number of people. Roughly 40% of adults in the U.S. have tried marijuana, and more than 22 million people use the drug regularly. To supply this demand, thousands of people are growing and selling marijuana. In Colorado alone, for example, there are more than 600 state licensed marijuana suppliers. There are also countless third parties who regularly deal with these users and suppliers, including physicians who recommend marijuana to patients, banks that provide payment services to the marijuana industry, firms that employ marijuana users, and lawyers who advise all of the above.

All of these people need help navigating a thicket of complicated and oftentimes conflicting laws governing marijuana. Colorado, for example, has promulgated more than 200 pages of regulations to govern its $1 billion a year licensed marijuana industry. Among many other things, Colorado’s regulations require suppliers to carefully track their inventories, test and label their products, and limit where and how they advertise. These regulations are complicated enough but doubts about their enforceability (highlighted in the questions above) only add to the confusion and the need for informed legal advice.

This short intro should give you a sense of why I now regularly teach a course on Marijuana Law and Policy at Vanderbilt, and why I have spent a large part of the last two years completing a first-of-its-kind textbook with Aspen on Marijuana Law, Policy, and Authority. The link provides more details on the casebook, which will be published in May of this year—i.e., in plenty of time for summer or fall 2017 classes! And if you are interested in teaching a course in any aspect of marijuana law, contact me – robert<dot>mikos<at>vanderbilt<dot>edu -- I would be happy to chat.

That’s it for now. In the coming days, I’ll write about several of the questions posed above.

Posted by Robert Mikos on February 2, 2017 at 09:54 PM in Constitutional thoughts, Criminal Law, Current Affairs, First Amendment, Law and Politics, Things You Oughta Know if You Teach X | Permalink | Comments (2)

Monday, January 23, 2017

Peaceably to assemble

A question asked out of genuine curiosity and with no intent to disparage: How is it that more than 3 million people in multiple cities, including 1/2-million in D.C. and 1/4-million in NYC, marched without incident, without conflicts or confrontations with police, and without arrests? Meanwhile, so many other protest/march/rally/gathering everywhere for the past several years--all involving far fewer people--has seemed to devolve into violence, property destruction, and multiple arrests.

Without more, it seems too simplistic to say "these were peaceful, whereas those others were violent and met with appropriate force." There is a chicken-and-egg problem: Has conflict resulted from those protesters being angry, violent, and destructive and police responding with appropriate force and authority to lawlessness? Or have protesters become angry when met with massive resistance by police in riot gear limiting where in the public spaces they are allowed to move, trying to move them off the streets or pen them off into far-off "protest zones." Have other protests descended into lawlessless when police declared otherwise-peaceful gatherings unlawful assemblies to be broken up with force and detention? Not to excuse violence or say that no arrests have been warranted; only to say the spark of conflict is not clear. The consent decrees with Ferguson and Baltimore, with specific provisions requiring cities and policies departments to reassess how they respond to public protests, suggests a recognition that departments have not responded well.

So why was Saturday different, both in the sunny protesters and in the mild, cooperative police response? Was it that the world was watching? Was it that the terms of the gatherings had been negotiated in detail in advance and adhered to (which Tim Zick would argue is good for keeping the peace, but not what public expression should require)? Was it that the crowd was predominantly women, who are less likely to become violent or confrontational with police? Were police more restrained because the protesters were women? Was it that the crowd seemed largely (just based on photographs and TV coverage) white, which created a less heightened atmosphere among police? Was it some combination of all of these?

Finally, regardless of why Saturday was so peaceful, will cities learn anything from it? Will it demonstrate that public speech is possible, consistent with other municipal activity, and need not be restrained or pushed into confined areas or met with massive force? Will it demonstrates that public speech should be welcomed?

Posted by Howard Wasserman on January 23, 2017 at 09:31 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (14)

Tuesday, January 17, 2017

Antitrust or corporate speech?

Is this supposed plan among San Diego-area (and possibly Los Angeles-based) moving companies not to take any jobs related to the Chargers move to L.A. an antitrust violation? I know consumer boycotts are protected free-speech. But isn't an agreement among members of an industry not to engage in certain business behavior the anti-competitive collusion the antitrust laws prohibit? Is it different if the collusion is for expressive purposes? And if so, wouldn't that swallow the antitrust laws, because companies always would argue that their business decisions were driven by political concerns?

Besides what better captures the sadness of a franchise relocation?

Images

 

Posted by Howard Wasserman on January 17, 2017 at 08:34 AM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (3)

Friday, January 13, 2017

Last of its kind?

DOJ has entered into a consent decree with the Baltimore Police Department in a § 14141 action. As with many of the consent decrees we have seen from the Obama DOJ, it requires extensive changes to department policies and practices with respect to use of force, community engagement, and respect for the rights of people to speak and protest in public and to observe and record police activity. It also requires development of new practices with respect to transporting persons in custody and dealing with people with behavioral disabilities.

The question is whether this is the last such consent decree we see for awhile. Jeff Sessions does not appear to see systemic unconstitutionality in state and local police departments, nor does he appear to believe that the federal government and federal courts should oversee the operations of local agencies. It is unlikely that whoever Bush Trump appoints to head the Civil Rights Division will take a much different view of the matter. Extensive use of consent decrees through § 14141 is not in the Republican playbook--the Bush DOJ brought few civil actions and entered few consent decrees, preferring to engage in informal negotiations and letters of agreement, a less-adversarial/more-cooperative approach that does not necessarily produce as comprehensive reforms.

Posted by Howard Wasserman on January 13, 2017 at 12:28 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (3)

Monday, January 02, 2017

Why We Need to Talk about Trump & Press Freedom

On Wednesday, January 5, AALS2017 kicks off with a panel on Trump & Freedom of the Press in the Plaza Room Lobby Level of the Hilton Union Square at 8:30 am.

RonNell Andersen Jones (Utah), Amy Gajda (Tulane), Sonja West (Georgia), Erwin Chemerinsky (UCI), John Diaz of the San Francisco Chronicle, and I will be discussing what the Trump presidency might bode for press freedom. In preparation for the panel, I thought I'd share with you the research I've done suggesting why this discussion is necessary and timely. In short, here are the reasons that the media (and those of us who value the role they play in our democracy) have legitimate causes for concern that press freedom might be curtailed during the Trump Administration. 

First, Donald Trump has shown himself to be remarkably thin-skinned about unflattering press coverage. Throughout his campaign and after, he has publicly berated  Saturday Night Live, the New York Times,  and many, many other news organizations and individual journalists (too many to enumerate here, as is evident from this list compiled by MediaMatters.org) for criticizing him or simply for covering him.  Shortly after the election, he called television news anchors and executives to Trump Tower  to browbeat them for their "dishonest" and "short sighted" and "outrageous" election coverage. He singled out CNN and NBC as the "worst," calling CNN "liars." All of this seems a bit churlish from a candidate who got at least $2 billion worth of free air time from these same media actors and did not hold a press conference from July 2016 until the end of December.  Nonetheless, it suggests that the relationship between this President and the press will not be a smooth one. 

However, more alarming than Trump's propensity to take offense at even the most innocuous press criticisms was his propensity to incite supporters against the press during his campain. Certainly other elected officials have villified and will doubtlessly continue to villify the press to score political points (think VP Spiro Agnew's "nattering nabobs of negativism").  However, Trump turned up the heat beyond anything previously seen. As Margaret Sullivan wrote in The Washington Post, "Donald Trump made hatred of the media the centerpiece of his campaign. Journalists were just cogs in a corporate machine, part of the rigged system." During his campaign events, he restricted press to a "pen" and then inflamed his supporters by calling them dishonest and accusing them of rigging the election and inventing stories to discredit him. His supporters often responded with boos, ugly gestures, and chants of "liars", "assholes," "CNN sucks!," and worse, causing some reporters to fear for their safety.

Trump further displayed a lack of appreciation (or perhaps contempt?) for pool reporters by denying them traditional avenues of access. Unlike previous candidates, Trump never allowed the press on his plane. He also revoked credentials  or denied credentials of those who garnered his special ire.  Although Trump has promised to have a "normal" press pool as president, he's shown a willingness since being elected to deny pool coverage of important meetings and to ditch his press pool at will. He's also stated he may change the format of press briefings, in an as yet unspecified way.  On a somewhat more positive note, he has  granted interviews to several outlets since his election, including The Today Show, 60 Minutes, The New York Times, The Wall Street Journal, and Time Magazine, though his anti-media rhetoric and disrespect for traditional channels of access cast doubt on whether this trend will continue once he's in office.

Other causes for concern about Trump's respect for press freedom abound. During the campaign, he promised, if elected, to "open up libel laws" to make it easier for public figures to sue the press, a threat that betrays a fundamental misunderstanding of libel law and constitutional constraints on the President. More alarmingly, Trump has shown a propensity to threaten lawsuits against journalists or actually sue over both innocuous criticisms and normal news coverage. As an ABA report revealed, "Trump and his companies have been involved in a mind-boggling 4,000 lawsuits over the last 30 years and sent countless threatening cease-and-desist letters to journalists and critics. But the GOP presidential nominee and his companies have never won a single speech-related case filed in a public court." Defending libel suits is expensive, even if one ultimately wins; thus, the mere prospect of being sued for libel can have a chilling effect on reporting. In fact, there's evidence that Trump's reputation as a "libel bully' has already chilled some speakers and is likely to chill others.  

Beyond that, Trump has praised ruthless dictators who have trampled press freedoms and targeted journalists for assassination. In fact, when asked if his praise of Vladimir Putin was tempered by Russia's killing of journalists, Trump said no:  “He’s running his country, and at least he’s a leader, unlike what we have in this country.” Such rhetoric would be chilling, even in isolation, but of course it is not in isolation.

Meanwhile, Trump comes into office on the heels of a President who has already eroded the press's ability to perform its watchdog role by aggressively pursuing leaks investigation against government employees, subpoenaing reporters to reveal confidential sources, and monitoring telephone and email records of journalists in service of leaks investigation. As Dana Priest of the Washington Post stated: “Obama’s attorney general repeatedly allowed the F.B.I. to use intrusive measures against reporters more often than any time in recent memory. The moral obstacles have been cleared for Trump’s attorney general to go even further, to forget that it’s a free press that has distinguished us from other countries, and to try to silence dissent by silencing an institution whose job is to give voice to dissent.” President-Elect Trump has not signaled whether he will continue such practices, but the fact that his former campaign manager  said that the executive editor of the New York Times should be in jail for publishing Trump's tax returns doesn't exactly inspire confidence. Trump also has not signaled how executive agencies within his administration will be directed to handle Freedom of Information Act requests, and although an RNC spokesman has praised the transparency of the Trump transition, Trump's previous treatment of the press, together with his refusal to release his tax returns, certainly gives reason for doubt on this score as well.

In addition to these causes for concern, the media have their own issues that may hamper their ability to perform their watchdog role during the Trump presidency. Trump is a genius at newsjacking. He is able to set the agenda of the media with his tweets and drown out negative coverage. Trump's "Hamilton" tweet, for example, garnered more eyeballs than the $25 million settlement of a fraud suit against Trump University. Meanwhile, the struggle to maintain press freedoms comes at a time when the public's views toward the media are increasingly hostile, many segments of the media face revenue challenges, and fake news undermines the role of legitimate journalism in furthering democratic self-governance. [Not to mention that "post-truth" was the OED's 2016 word of the year.] These issues, and many more, will give the Trump & Press Freedom panel ample fodder for discussion. I hope you can join us. 

Posted by Lyrissa Lidsky on January 2, 2017 at 07:37 PM in Constitutional thoughts, Current Affairs, First Amendment, Lyrissa Lidsky, Torts, Web/Tech | Permalink | Comments (3)

Tuesday, December 20, 2016

A student-athlete tries the First Amendment

Noriana Radwan was a freshman soccer player at UConn in 2014, when she was seen flipping-off an ESPN camera during the team's on-field celebration after winning the conference championship. She was suspended indefinitely and stripped of her scholarship, then transferred to Hofstra. Radwan has sued UConn and the responsible officials in federal court. Her primary focus is equal protection and Title IX, alleging that male athletes have done worse and been reinstated). But Count IV claims a violation of the First Amendment, stating that her conduct was "offensive and inappropriate," but still protected speech by a private citizen on a matter of public concern.

It could be worth following the First Amendment piece.

 

Posted by Howard Wasserman on December 20, 2016 at 08:29 PM in Civil Procedure, First Amendment, Howard Wasserman, Sports | Permalink | Comments (0)

Friday, December 16, 2016

And now Princeton swimming (Updates)

It is becoming increasingly easy for someone to win the Ivy League title in various men's non-revenue sports, because there are not going to be any more teams to compete against. Harvard men's soccer had its season canceled and its cross-country team placed on probation, and Columbia's wrestling team had a game canceled. And now Princeton's men's swimming and diving had its season suspended, pending an investigation into emails and other materials on the team listserv that were "vulgar and offensive, as well as misogynistic and racist in nature."

Princeton's AD explained (and justified) the action on the ground that "[w]e make clear to all of our student-athletes that they represent Princeton University at all times, on and off the playing surface and in and out of season, and we expect appropriate, respectful conduct from them at all times." The suspicion in these student-athlete cases, including among those who might be inclined to challenge such actions, is that student-athletes are like employees speaking as employees, with virtually non-existent free-speech rights under Garcetti. The Princeton statement reflects that idea. But no actual employee works under similar constraints, in which he is an employee 24/7/365 and in all contexts. So we again have student-athletes stuck in the worst of all possible worlds--limited in the same ways as employees, but enjoying none of the benefits and protections that true employees receive.

Update: And more: Wash U.'s men's soccer team and Amherst cross country, showing this extends into Division III, as well. The Amherst team apologized.

Further Update:Michael Masinter's comments reveal the problem for the students, which I had forgotten: Employees (assuming student-athletes should be treated as such) enjoy no protection for their private speech. Which may say more about the trouble with the employee-speech doctrine than anything. Or maybe future scouting reports will include a "Go Trump" at the end.

Posted by Howard Wasserman on December 16, 2016 at 12:17 PM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (4)

Tuesday, December 13, 2016

The downside of Bartnicki

In a short post, Slate's Ben Mathis-Lilly considers that journalists (including himself) abetted (likely) Russian interference with the presidential election by publishing leaked information. All adhered to the legal and ethical proposition that journalists can, should, and arguably must publish truthful, lawfully obtained information on a matter of public concern. And those principles do not distinguish among information leaked by an idealist whistle-blower, a bureaucrat with an axe to grind, or a hostile foreign government--indeed, Mathis-Lilly questions whether it is possible to draw such lines.

Posted by Howard Wasserman on December 13, 2016 at 10:59 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Friday, December 02, 2016

Facebook’s Fake News Crisis and Social Media Echo Chambers

This week I wrapped up my Torts course with a discussion of products liability and the McDonald’s hot coffee case. We watched this clip, which noted that Stella Liebeck’s case became one of the most misreported tort stories of all time: news of the $2.9 million verdict went viral, facts were skewed, and Ms. Liebeck was villainized.

The hot coffee case happened in the 1990s, and I can only imagine the memes and fake headlines we would have seen on Facebook had the case happened today. This brings me to the 2016 election – the results of which left many people stunned by the seemingly unpredictable outcome. Social media may be to blame, at least in part, for two reasons. First, “fake news" has blurred the lines between entertainment, advertising, and real journalism. Second, our news feeds keep us from hearing diverse perspectives.

First, fake news is becoming harder to spot and control. Until two weeks ago, Facebook allowed fake news stories as sponsored content. These stories consist of made-up clickbait, dressed up to look like legit news. Fake-news generators would pay to have their content appear on Facebook because it brought more clicks and ad revenue. Rolling Stone reported this week about a comedian and fake-news creator who intended to troll Trump while making some cash in the process, thinking his stories were too ridiculous to fool anyone. New York Times interviewed a fake news creator in Tbilisi, Georgia who focused on anti-Clinton news, as it produced the most clicks. He also considered his work satire and not fake news. Certainly we as readers should use good judgment and be at least somewhat skeptical about what we read. But one recent study shows a disturbing inability to differentiate between real news and fake news, especially among younger people. The truth is, we are not sorting out fact from fiction very well online.

Second, news feed bias may have led us further astray.

About six months ago, the Wall Street Journal wrote about Facebook’s news feed bias and created an online tool showing the difference between red feeds and blue feeds. It seems obvious that Facebook’s algorithms would tailor content to fit what we already like. After all, Facebook only profits when we stay logged in and engaged. But studies show that many people are getting most of their news from social media these days, so the red feed / blue feed phenomenon may have created an echo chamber of unprecedented scale this past election cycle. 

Facebook and Google recently announced that they will crack down on fake news. And, according to some reports, Facebook is doing some serious soul searching about the role fake news and news feed bias may have played in this election. But by adjusting their own internal policies to combat fake news, these companies once again act as the Great Deciders, assigning to their paid staff or contractors the task of judging the veracity of specific posts. In an effort to promote truth, they will censor. And drawing the line between fake news, satire, and sloppy journalism is tricky.

I am looking forward to seeing future scholarship on these issues. Some scholars have already noted that market forces alone fail to weed out truth from fiction, but regulation of fake news poses difficult First Amendment challenges. We also need to be wary of attempts to chip away at the immunity for online intermediaries like Facebook and Google under Section 230 of the Communication Decency Act. Looking beyond these legal challenges, tech experts are also grappling with the fake news problem and have proposed some design-based solutions. 

But social media platforms – and all of us – must figure out how to deal with fake news and echo chambers. I personally recall the 1990s sensationalist headlines about the McDonald’s hot coffee case, and admit that I never thought critically beyond the skewed narrative at the time. And I'm pretty sure I clicked on that headline about the Pope endorsing Trump.

Posted by Agnieszka McPeak on December 2, 2016 at 09:45 AM in First Amendment, Information and Technology, Web/Tech | Permalink | Comments (6)

Tuesday, November 29, 2016

The return of flag burning? (Updated)

Donald Trump tweeted this morning (after the sun was up, so no 3 a.m. jokes to be had) "Nobody should be allowed to burn the American flag - if they do, there must be consequences - perhaps loss of citizenship or year in jail!" Jonathan Chait suggests this is misdirection to cover Trump's pending kleptocracy and the (from Democrats' perspective) extreme policy ideas of his cabinet members, a red-meat issue to rile up both his critics and supporters

But it raises the question whether a flag-burning amendment is coming in the new Congress and whether it might, finally, pass. The last time it moved to a vote was 2006, the last time Republicans controlled both houses and the White House; it passed the House and fell one vote short in the Senate. And that was without an unpopular Republican President making it into a thing. With a very different, more conservative Senate and a Republican president willing to making it an issue that appeals directly to his base, might the amendment finally get out of Congress? Plus, Republicans control both chambers in 30 states and Nebraska's unicameral legislature seems likely to go for it, given the state's politics. Are there seven more states to be had in a new political environment?

Another thought: Maybe Trump's target is not Barack Obama's legacy or Lyndon Johnson's legacy, but William Brennan's legacy.

Update: A number of Republican Senators and Representatives, including Mitch McConnell, reminded Trump that the First Amendment protects flag burning and the right to "disgrace" the flag. Of course, one could see many people pivoting from such "is" statements about flag burning to support an amendment that creates a new "ought." To his credit, McConnell seems more categorically opposed to messing with the First Amendment.

Second Update: What would the vote be if flag burning came anew before the current Court? The only current justice I could see ruling against flag burning being protected, based on recent First Amendment cases, is Justice Alito.

Third Update: I should add that, under the theory of departmentalism I have been espousing here and elsewhere, Trump's threats are constitutionally permissible and appropriate. If he believes flag-burning can constitutionally be punished, he is free to seek to prosecute, jail, or strip citizenship from those who burn flags. He will lose when he tries. But his actions are consistent with his oath and his Take Care obligations.

Posted by Howard Wasserman on November 29, 2016 at 01:51 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (5)

Thursday, November 24, 2016

And still more restrictions on student-athlete speech

So the Harvard soccer and Columbia wrestling teams were suspended over the speech--private schools all, dealing with arguably "official team" speech. Then four ULL football players were suspended over a "fuck Trump" video--justified by some as occurring in the locker room and thus in the team context.

Now we have four Kansas cheerleaders suspended over a snapchat photo in which three male cheerleaders were photographed standing side-by-side in what appear to be intentionally-ugly Christmas sweaters with the Kansas "K," over the message "Kkk go Trump." (Photo after the jump). The female cheerleader/photographer insists someone took her phone and posted the picture; the mother of one of the men insists they were old sweaters.

The photo apparently was taken at a dorm party. It was not in the locker room, not part of an official team or university function, and not made in any team-wide forum or context. Moreover, the photo cannot be squeezed into any category of unprotected expression and reflects, albeit in a snarky way, a political message. So we now have a clear case of treating student-athletes differently than their non-athlete classmates for First Amendment purposes even when they are speaking as students and not as athletes.

The only justification is if student-athletes are employees who speak for and represent the university--a tough sell, given the rest of the NCAA's agenda (as a commenter on a prior post noted). And even employees (including university employees) do not speak in their employment positions at all times and enjoy something closer to ordinary First Amendment protection when speaking as citizens on matters of public concern. We long ago rejected the Holmesian idea that "There may be a constitutional right to talk politics, but there is no constitutional right to be a policeman," at least as the First Amendment limit. We would similarly reject the idea that "There may be a constitutional right to speak, but there is no constitutional right to be a Kansas Jayhawk cheerleader." Somewhere there must be a point at which a student-athlete speaks for herself and not as the university, and thus cannot be stripped of her university position because of her private speech.

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Posted by Howard Wasserman on November 24, 2016 at 09:01 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Friday, November 18, 2016

What if the press is only a bulwark of its own liberty?

One reason many people (including me, I admit) believed Donald Trump would not win the presidency was that political institutions designed to protect against untruthful authoritarians and demagogues would expose him and his lies and his threats to American liberty, and the public would take heed. Chief among these was the institutional media. That did not happen, for a variety of reasons that people will be writing about for many years, especially if the Trump administration goes as badly as many fear.

But one idea floating around is that the election exposed a fatal flaw in the narrative of the press as bulwark of liberty: It cares about  its own institutional liberty and stands up only against threats to that liberty. But where the threat is directed elsewhere (e.g., Muslims or Mexican immigrants or his political opponents or African-Americans or the rest of the world), the dogged and outraged coverage wanes (or is outweighed by other shiny objects, such as emails). There might be something to this. If we think about the conduct and statements that triggered media coverage and outrage during (and after) the election, most involved direct actions or threats against the institutional media: stripping publications of access to rallies (and the similar threat to deny White House credentials); successfully ginning up anger at rallies directed toward the media generally and news organizations such as CNN in particular; direct attacks on particular journalists (Megyn Kelly, Katy Tur, etc.); the promise to "open up" libel laws; the refusal to disclose his tax returns (which would be reported through the press to the public). The latest is Trump ditching the press pool to go to a restaurant, after informing reporters he was done for the evening, a breach of the "transparency" the media demands.

These are not unimportant acts, they do threaten the ability of the press to perform its "Fourth Estate" function of checking government abuse and informing the public, and they warrant discussion and publicity. But they arguably receive outsize coverage, more coverage than many of Trump's other, arguably more serious, sins.

Posted by Howard Wasserman on November 18, 2016 at 09:31 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (5)