Thursday, August 11, 2016
IP, The Constitution, and the Courts - IPSC 2016
IPSC 2016 - Breakout Session III - IP, The Constitution, and the Courts
Lexmark and the Holding Dicta Distinction – Andrew Michaels
Established Rights, the Takings Clause, and Patent Law – Jason Rantanen
A Free Speech Right to Trademark Protection? – Lisa Ramsey
Lexmark and the Holding Dicta Distinction – Andrew Michaels
How do we distinguish dicta from holding? This project uses the Federal Circuit's dispute in Lexmark (on remand) over the breadth of the holding in Quanta. As Paul Gugliuzza summarized it for me (I was a late arriver), Michael's argument is that, rather than treating holding/dicta as a binary distinction, we should envision a spectrum of the types of things that courts say in their opinions.
A spectrum approach to holding v. dicta might helpfully restrict courts. If a holding says "No red convertibles in the park", we might worry about a case where a subsequent court says the opinion requires a holding of no vehicles in the park. They are not unrelated, but perhaps still dicta. Broader statements should have less capacity to bind than narrower holdings.
Jason Rantanen: This is interesting. We often see doctrinal pronouncement in Federal Circuit's case, much broader than necessary to decide the case. We also see language from earlier court opinions that are clearly dicta. Panels in the Federal Circuit nevertheless use it later. I wonder, however, whether we should take into account how the court is using the language. For example, do we bind the court to holding language only, or might they be appealing to the persuasiveness of early reasoning. Your spectrum focuses on text as it appears in the early opinion, but is that too narrow? Can dicta apply?
Andrew - Sometimes dicta is well considered. But if the court pretends it's a holding, and acts as if it is bound, then they are failing to adjudicate the dispute, and that's a problem.
Paul Gugliuzza - I think the Federal Circuit may engage in some over-use of dicta. Is there a prescriptive payoff to this spectrum? How does the court determine whether to follow the statement or not?
Andrew - The payoff is to require courts to deal more directly with the question of dicta.
Pam Samuelson - I think it's interesting when dicta becomes a holding, over time, and solves a problem. For example, the 3rd Circuit (Whelan) case had a lot of broad dicta that led to a lot of litigation. But the 2d Circuit also included a lot of dicta in Computer Assocs. v. Altai, and the dicta from the that case seems to have knocked out Whelan, and been followed, correctly from Pam's view, in many other circuits.
A subsequent observation from Paul: I think the spectrum provides an interesting descriptive contribution, but I wonder whether, instead of arguing whether a statement is holding or dicta, we'd just end up arguing about (1) where on the spectrum a particular statement falls and (2) whether, given its location on the spectrum, it's binding law or not.
A Problem of Subject Matter: Patent Demand Letters and the Federal Circuit’s Jurisdiction – Charles Duan & Kerry Sheehan
States are passing laws designed to cabin patent demand letters. We might presume that the Federal Circuit has primacy, but this paper argues the question isn't so cut and dried. The Supreme Court, in a case about attorney malpractice, held that there should be a balance struck between the interests of the federal courts and the state's consumer protection laws.
In a demand letter case, we could ask whether 1) this raises a sufficient issue of federal patent law, and 2) is the law unconstitutional or improper. To understand the second question, look to the Federal Circuit's Globetrotter case. The patent holder threatened to send letters to the defendant's clients. The defendants sued for tortious interference, and Fed. Cir. held that the Patent Act preempted acts that prevent sending demand letters.
We argue there is an odd disconnect in the Federal Circuit's analysis. It's a mistake that makes the Federal Circuit's jurisdiction appear larger than it is.
What is the right policy outcome? Should the Federal Circuit have primacy here? The uniformity issues that inspired the creation of the Federal Circuit doesn't necessarily reach every case that touches on patent law, and perhaps these demand letter cases are outside the needs of the uniformity requirement.
Jake Linford: I'm unclear on where the line is between the stuff the Federal Circuit controls and the stuff it doesn't. It sounds circular to me. Help me understand.
Charles: The Supreme Court doesn't take the view that the Federal Circuit is the final arbiter of all patent issues. The Christensen and Gund cases are examples where the Supreme Court put the responsibility with the Seventh Circuit and Texas courts respectively. Questions of validity of the patent may go to the Federal Circuit, but not claims about a clearly invalid patent.
Lisa Ramsey: One of the reasons this is so important is because people will get different results before a state court than the Federal Circuit. Is that right?
Charles: It's unclear. If we sort some cases for the Federal Circuit and others for the states, we might get divergent outcomes.
Pam Samuelson: How does the issue of validity of the patent get to the Federal Circuit if the case starts in state courts?
Charles: Removal is the mechanism.
Pam: If so, then how do we take the ability of the Federal Circuit away? If the Federal Circuit decides whether it has jurisdiction...
Charles: Perhaps the Supreme Court takes cert?
Paul Gugliuzza: What triggers the arising under jurisdiction of the patent clause? Isn't this a matter of patent jurisdiction?
Charles: I'm not sure this meets the Constitutional language...
Paul: The Federal Circuit may rely on Globetrotter, even if I disagree with them.
Paul Gugliuzza sent me the following summary of the Duan - Sheehan paper, which I find much better than my own:
Established Rights, the Takings Clause, and Patent Law – Jason Rantanen
Recent arguments have suggested that when patent laws change, the takings clause may be implicated. I wanted to understand the analytical reasoning behind the takings claim. Takings case law is a deep, Alice-in-Wonderland rabbit hole. How does it actually apply to patent law?
1) Jason agrees that patents are property subject to takings clause. (The Federal Circuit said no, in Zoltec, when the government infringes the patent. The Supreme Court, instead, suggested in dicta in the raisin takings case, that patents are the type of property subject to the takings clause)
2) But it's inappropriate to cut and paste takings case law to patent cases. Patents aren't like rights in real property. We know what a takings of a coal mind looks like. Patents aren't the same. In addition, one key right "taken" is the right to use, and the patent holder doesn't lose the right to use, only the right to exclude or alienate. So application of standard takings cases is difficult.
3) The question is instead whether the new law changes or destroys an "established property right" in the patent. That's the taking, if there is one. What's an established property right? The type associated with property, established with a high degree of legal certainty. See, for example, the Penn Central case, where the Supreme Court is looking for certain rights. If we are looking for high degree of legal certainty, many aspects of patent law has changed significantly and frequently over time. Patent has replaced the entire statutory framework at least four times, with only very minor exceptions. For example, when Congress passed the 1836 Patent Act, it replaced the prior act, and also applied the new act to pending litigation. There are many similarities, but this is a new draft. Same with the 1952 Act: "It shall apply to unexpired patents." Damages changed dramatically, as summarized in Halo v. Pulse. Patent owners used to get treble damages automatically, and they don't anymore. Patent holders in 1836 lost that right while claims were pending.
Lisa Ramsey: One argument against cancellation in the Redskins case is takings.
Jason Rantanen: The Redskins case considers whether the right was valid in the first place, which falls outside of standard takings analysis.
Camilla Hrdy: You may want to consider why the Supreme Court has held a trade secret can be taken. If so, why not a patent?
A Free Speech Right to Trademark Protection? – Lisa Ramsey
The Federal Circuit recently held that the 2(a) bar against registering disparaging trademarks is unconstitutional. Lisa's paper aims to make two unique contributions to literature on disparaging trademarks and the First Amendment:
- Is there a right under international treaties to be able to register a disparaging or scandalous trademark? The answer is no.
- A framework of six elements that should be applied in deciding whether laws against offensive trademarks run afoul of free speech rights.
The U.S. is not the only country that bans registration of scandalous marks. Canada even bans use.
We are members of the Paris Convention, which gives signees the discretion to decide whether to deny a registration on the grounds that a mark is contrary to morality or public order.
Lisa's framework (and 2(a) seems to meet most of these conditions):
- Is there government action? Who regulates the expression?
- Suppression, punishment, or harm: How does the regulation harm expression? Are there unconstitutional conditions imposed on speakers by denying the benefit? Lisa says no, because the benefit being denied is the right to restrict the speech of others.
- Expression. What is being regulated?
- Is this individual or government speech? Whose expression is regulated?
- No categorical exclusion for the expression: Is the regulation justified because of a categorical exclusion, like obscenity or misleading commercial expression?
- Does the regulation fail constitutional scrutiny? Is it content-neutral or content-based? That triggers different levels of scrutiny in the U.S.
What could the Court do if it wants to uphold 2(a)? 1) Say it's not suppression or punishment, and the unconditional conditions doctrine does not apply, under factor 2. 2) It satisfies the scrutiny under 6. 3) Make a "traditional contours" argument like in Eldred and Golan.
Saurabh Vishnubhakat: Pushing on Lisa's state action analysis, if we apply Shelly v. Kramer broadly (where the Supreme Court refused to allow the enforcement of racially restrictive covenants in court, and which may be limited to its fact), that may suggest everything is potentially a state action?
Rebecca Tushnet: If the Court is taking a "hands off" approach to conflicts between trademarks and the First Amendment, then doesn't hands off mean no registration? Isn't that state action?
Lisa: It is state action.
Rebecca: Then isn't everything state action.
Lisa: There are real benefits to registration that impacts the first amendment. Demand letters work better when backed by a registration. And when you have a registration, it's easier to push claims that some see as questionable, like dilution and merchandising cases.
Charles Duan: When it comes to disparaging marks, those have particularly strong expression value - used to express feelings, and therefore even worse to restrict than other registrations.
Pam: Is there an international standard?
Lisa: No, as I read the law, each country has discretion to set up the system it prefers.
Posted by Jake Linford on August 11, 2016 at 08:45 PM in Blogging, Civil Procedure, Constitutional thoughts, First Amendment, Information and Technology, Intellectual Property, International Law, Judicial Process, Property, Science | Permalink | Comments (0)
IP for Characters & Symbols: IPSC 2016
IPSC 2016 Breakout Session I: IP for Characters and Symbols
I summarize the following presentations, and the discussions about them, below the fold. If I didn't know an audience participant, I didn't include a name, but if you are an anonymous commenter, tell us who you are in the comments.
Is Copyright an Author’s Right? An Authorship Perspective on Copyright Law – Mira Sundara Rajan
Works of Fiction: The Misconception of Literary Characters as Copyright Works – Jani McCutcheon
Zombie Cinderella and the Undead Public Domain – Rebecca Curtin
Trademarks, Core Values and Cultural Leadership – Deborah Gerhardt
Intellectual Property in Internet Folklore – Cathay Smith
Mira Sundara Rajan, Is Copyright an Author's Right? An Authorship Perspective on Copyright Law
Copyright is arguably the only regime designed to promote culture, and that should mean providing income to creators. But many authors struggle to make a legitimate income. Mira is concerned that copyright isn't correctly calibrated to that end. At a minimum, authors need more voice.
Lisa Ramsey asks whether Mira plans to frame this as a human right or some other way.
Mira: International law mentions a moral right of authors as a form of human rights. But the Berne treaty may effectively embody human rights in automatic protection at creation.
LRamsey: But then might the human right to copyright conflict with a human right to free speech? And if corporations hold copyright, is it proper to think about copyright as a human right?
Shyam Balganesh: There are two ways to look at copyright - looking at authors rights, and looking at the acts that authors take. You propose that the net income of authors is low, but it's not clear that copyright is the right mechanism to enhance their welfare. Perhaps authorship is the better focus than authors.
Mira: Japan grants to corporations something that looks like a human right in authorship functions, and Japan is an outlier here.
Jani McCutcheon, Works of Fiction: The Misconception of Literary Characters as Copyright Works
Fictional characters qualify as protectable copyright works in large part because of a problematic Learned Hand opinion, Nichols v. Universal Pictures Corp. But to protect characters as works, they must be identifiable. But where is the character perceived? You can't excise the character from the text, and characters are more abstraction than expression. If we are separating characters out as works, is there a right and a wrong way to read or construct the character. If not, it may be impossible to define the character as a protectable work. Characters traverse different media, which further complicates the question.
Deborah Gerhardt: Copyright has so many tests for the same thing. I love clear rules, I love the Feist opinion because it is clear. I'm resistant to your analysis because it gives us an entirely different originality test for characters than anything else.
Jani: I'm not sure we should be looking for a way to define the character, and I wouldn't apply the test to characters at all.
Betsy Rosenblatt: I'm quite sympathetic to the project, but I'll ask a question I've been asked. Why isn't this a problem for all of copyright? Reader response theory suggests all interaction with copyrighted works is dialogic. If so, this is a universal problem for copyrighted works. Perhaps this is similar to [Guy Rub and Margot Kaminski's] zoom-in, zoom-0ut problem.
Jani: This may be a broader phenomenon.
Lisa Ramsey: This reminds me of Betsy's work on Sherlock Holmes. But I'm conflicted. Some characters are well-delineated. If I add Harry Potter to my law school novel, is there any infringement? Of what?
Jami: What do we mean by take Harry Potter? Under my analysis, if little of the expression has been taken, and there is little / no substantial similarity between the works, there is no infringement. Admittedly, the name is potent, but because of trademark significance.
Inayat Chaudhry: What if there are characters like Calvin & Hobbes, and the whole work is based on the characters?
Jami: This is a hybrid work, with visual and literary components, which complicates the analysis.
Seagull Haiyan Song: I agree the current test doesn't work. But if copyright protection isn't the right solution, should there be something else? Protection of character rights as such?
Rebecca Curtin, Zombie Cinderella and the Undead Public Domain
[Is this the best title of the conference?]
Someone tried to register "Zombie Cinderella" as a mark for a doll. There was an initial refusal grounded in confusion with Disney's Cinderella. The Trademark Trial & Appeal Board reversed the refusal, holding the "Cinderella" part of Disney's mark was a conceptually weak indicator, in part b/c of third party dolls on the market, and in part b/c of long history of the Cinderella story.
The danger here is that the signal sent is that Disney should have worked harder to protect the mark. And we see protectable marks for Cinderella soap, cosmetics, etc., and that doesn't seem problematic in the same way. Is Cinderella generic for dolls? That doesn't seem quite right, and genericism doesn't fully animate what the public domain story lends to the underlying good.
Instead, I'm thinking in terms of extending the aesthetic functionality doctrine to cultural elements. Trademark needs a doctrine to deal with the use of fairy tale princesses as trademarks or brands.
Betsy: Aesthetic functionality is what Tyler Ochoa suggested to me instead of genericism as the solution to the Sherlock Holmes problem. I want to make a push for genericism (I'm glad you didn't go to descriptive). You are right - it's not descriptive for dolls, but it is the generic descriptor for the character. You can't call Sherlock anything other than Sherlock, and you can't call Cinderella anything other than Cinderella. We use nominative fair use to deal with it on the infringement side, but we should have to. Here, the term Cinderella is generic for what the product represents. AF is a poor fit: oxymoronic, and it seems to ask whether we buy something because it is pretty / attractive.
Deborah Gerhardt: Perhaps we need a public domain for characters like these.
Ann Bartow: Is this like copyright title, where you don't get protection in titles? [Jake: trademark handles title differently, for books - no protection for a single book, but protection for a series of books (Harry Potter & ___) or magazines.
Ed Lee: I would prefer a more full-throated defense of the public domain created by the copyrighted work aspect. You could try to recapture a trademark public domain - what's the proper boundary of a copyrighted [cultural?] character in the public domain. [JL: Is this then a Dastar problem - no trademark protection because the character as cultural artifact in doll context belongs in the copyright bucket, and protection has expired?]
Laura Heymann: You may benefit from disaggregating the individual aspects of Cinderella and her characteristics. United used Rhapsody in Blue - the fact that it's in the public domain doesn't necessarily mean it cannot have some trademark function, so more careful pulling apart may be valuable.
Deborah Gerhardt, Trademarks, Core Values and Cultural Leadership
A trademark may represent core values around which a community can coalesce. When you look at a brand community, what values does it have? Is the communal identity potential harmed by dilution, for example?
For example, brands are now pressured to make a stand on cultural issues. Target, for example, acted to restrict open gun carry in its stores. Here the brand is used as a tool for political reform. PayPal refused to bring in a business center in direct response to North Carolina's HB 2.
To have a mark strong enough to support a dilution claim, perhaps some identifiable core value is the minimum. If so, dilution harm is a disruption between the core value and the ostensibly diluting use. Goldfish crackers with marijuana - there may be disruption between core values and the brand. Louis Vuitton parody toy handbags? No disruption of the core value, merely playing with the core value. [JL: If that's right, is this anything more than a parody non-parody analysis? Not clear to me.]
Andrew Gilden: Does your "core values" require a popular political stance, or cultural buy in? If the majority turns in favor of equality, is this really a "core" value.
Deborah: Imagine that someone else had interfered with Ashley Madison's ability to signal its core value of secrecy and discretion. That might be a core value that the majority of Americans doesn't "value," but it at the core of Ashley Madison's brand identity.
Andrew: What if Christian Mingle tried to adopt an abandoned Ashley Madison brand.
Deborah: Sometimes core values are forged in crisis.
Seagull: Core values, under your definition, seem like they must be shifting.
Laura Heymann: Do you need to distinguish between value and core attribute?
Cathay Smith - Intellectual Property in Internet Folklore
Are there protectable rights in internet folklore? My project looks at the evolution of Slenderman, his propertization, and the coming movie, to investigate this question, and ask who is benefitted and harmed.
The character first showed up on the Something Awful website, in an image posted by Victor Surge. At first, people posted their own "sightings" of Slenderman without claiming any ownership of the character. But as the character has become more popular, parties have begun claiming ownership rights. At least two short films posted online were taken down after receiving a takedown notice. But the provenance of the ownership is uncertain. The claims lead to a chilling effect.
Is there ownership in Slenderman? Cathay argues no - Slenderman as we understand him wasn't fully developed with the first Victor Surge posts, but collectively as he became popular. She also argues factual estoppel - if the author(s) claim Slenderman is a real person and posted sightings are factual, then copyright claims might be estopped. Rights in the name of the title / name are also weak, under Rogers v. Grimaldi.
Normatively, property rights seem unjust. The Hollywood blockbuster isn't giving back to the community. This is also a nice example of chilling effects. In addition, propertization runs counter to community norms and ethos.
Ed Lee: Copyright might be a bad fit. Perhaps attribution, as a sui generis right, should be respected.
Cathay: Do you mean giving rights to the community, or preventing propertization of something created by the community.
Ed Lee: There are a range of options. I mean something more unleashed / free than standard property rights.
Lisa Ramsey: This reminds me of the orphan works problem - who is the owner? There are also joint works problems. So under current copyright doctrine, if people are fixing individual images, those seem independently protectable. Are the derivative works, derived from what version of the character, and if so, can you get protection in them?
Q: Is this character just a standard bogeyman? How much of this is really new? [Lisa Ramsey: Scenes-a-faire]
Seagull: Might we get something from creative commons analysis.
Q: Other commons uses of musical communities might also be valuable to consider.
Monday, August 01, 2016
He has no right . . .
Presumably because he cannot resist, Donald Trump is fighting back against Khzir Khan over his speech at the DNC. In response to Khan's move of asking Trump whether he had read the Constitution, displaying his pocket copy, and offering to lend it to him, Trump tweeted "Mr. Khan who has never met me, has no right to stand in front of millions of people and claim I have never read the Constitution, which is false."
People are having fun with the circularity of this--Trump asserts that Khan has no right to stand in front of millions of people and criticize him, but that right quite clearly is in the Constitution, thereby confirming Khan's point about Trump reading the Constitution. But I want to give Trump the benefit of the doubt. The key is the last clause--"which is false." Trump is not saying Khan has no right to criticize him, only that that Khan has no right to make a false statement about him, or, really, no right to defame him.
So let's break this out and see if Trump is right that Khan had no right to say what he did in front of millions of people.For starters, this is why I have thought the "pulling out the Constitution" move (historically pulled by Libertarians, but now seemingly fair game) is nonsense as part of a political discussion. The language in the Constitution does not answer most specific questions. For our purposes, Khan does not have a right to stand in front of millions of people and engage in unprotected speech. But the First Amendment's reference to "the freedom of speech" does not tell us anything about what is or is not protected
Diving deeper shows how disturbingly ignorant Trump is about the meaning (beyond the simple words) of the First Amendment.* First, Khan did not say that Trump had never read the Constitution; he asked whether he had and offered him a copy to read. Second, even if Khan's rhetorical question contained an assertion and that implied statement was false, that alone does not mean he did not have the right to say it in front of millions of people, since false statements are not per se unconstitutional.
[*] This is not news, of course. Just another illustration of the obvious point.
The real question is whether, if false, Khan's statement was unprotected defamation that Khan had no right to make. That depends on what Khan was asserting.
In context, the best understanding of Khan's statement is that Trump proposes policies and makes statements that violate, ignore, or disrespect the Constitution, suggesting a lack of understanding of what the Constitution protects (recall that, after pulling out his pocket copy, Khan pointed to liberty and equal protection, although, curiously, not free exercise, as concepts within it). Whether Trump has actually, literally "read" the Constitution is beside the point that Khan was making--someone could read the Constitution and still act contrary to it. So saying Trump has not read the Constitution is rhetorcal hyperbole, not meant literally or as a provable fact, but only as overstatement to make a larger point. The assertion that Trump's policies are contrary to the Constitution should be protected as an opinion, an expression of the speaker's own constitutional views, that is not provably false and that cannot form the basis for defamation liability. Finally, even if Khan was asserting as fact that Trump has not read the Constitution, I am not sure that is defamatory. Most people have not read the entire Constitution and there is nothing negative about not reading the whole thing; the harm comes from the negative implication that someone who has not read the Constitution lacks knowledge or respect for it, which, again, is protected opinion.
So while it is not as simple as those on Twitter and Reddit are saying, the point is accurate--Khan had a clear constitutional right to say what he did and the suggestion from a presidential candidate to the contrary is wrong as a matter of established First Amendment law.
By the way, am I the only one imagining Trump, sitting in a gold-plated bunker, doing this:
Tuesday, July 26, 2016
Philadelphia police and public protest
Interesting discussion of how the Philadelphia police are responding to public protest during the current DNC (as well as how they have responded to more recent Occupy and Black Lives Matter events). And he contrasts it with the city's absurd overreaction to the 2000 RNC, which produced 400 arrests in four days, few or no convictions, and unknown amounts in civil settlements. I was clerking in Philly during the 2000 convention and it was walking around a police state, in the pre-9/11 days, when that was not the norm.
Saturday, July 23, 2016
More on athlete speech in the WNBA (Second Update)
Second Update (Saturday evening): The WNBA, about to enter a month-long break for the Olympics, has rescinded the fines against several teams and players and will use the break to negotiate with the players' union about rules for player protests.
Following on my post about protests by WNBA players: Claire McNear at The Ringer wonders when the WNBA became apolitical, given the league's reactions to previous tragedies such as the Orlando shooting (when the league gave the players official memorial t-shirts), to say nothing of the league's general promotion of LGBTQ and women's issues. It also departs from the NBA's response both to the Lynx protest (NBA Commissioner Adam Silver praised their efforts) and to individual NBA players who have spoken out in similar ways the past few seasons (notably in wearing "I Can't Breathe" shirts during warm-ups). McNear questions whether the line really can be about who made and distributed the t-shirts.
Unfortunately, I fear a different explanation. The recent deaths of police officers has made them untouchable in the realm of public debate. You no longer can criticize or protest police officers, as by memorializing the victims of police-involved shootings (even as part of a general statement against all violence by memorializing everyone). The Orlando memorials no longer work as analogue, because the shooter there was a terrorist, not to mention an "other," so honoring those victims does not implicate police. We may be entering a time in which athletes can speak through the game, but only to express certain messages or certain positions on an issue.
As I said in the prior post, this is playing out on a smaller stage. The question is whether the same limitations are imposed on NBA or NFL players.
Update (Saturday afternoon): In my prior post, I argued that the key question is the extent to which athletes should be able to use the game, on the field/court, as a platform for their expression. The answer from the WNBA, according to this ESPN story, is that the players should keep their activism off the court. The league and the union have been trying to negotiate some arrangements, such as allowing players to wear what they want during early warmups (until, say ten minutes before the game), then change into official shirts for the national anthem; so far, they have been unable to reach an agreement.
The story includes comments from USA Coach Geno Auriemma, who seems to expect some players to attempt to speak out during the Olympics, which would become a matter for Olympic and basketball authorities. I hope we have come far enough in 48 years that the USOC would not respond as it did to Tommie Smith and John Carlos, by kicking them out of the Olympic Village.
I am more surprised by the following from Auriemma:
"I respect Tina (Charles) and the players in the WNBA for their concern and their voices and the passion that they have and for their beliefs. I really do," he said, citing the former UConn player and Liberty star for wearing her warmup shirt inside-out before Thursday's game. "I'm really proud of some of my former players and the way they've stepped forward and spoken their conscience and express their feelings."
This is a change in tone from Auriemma. In 2003, a small-college basketball player named Toni Smith began protesting the Iraq War by turning her back on the flag during the pre-game playing of the national anthem (what I described as "symbolic counter-speech"). Her coaches and teammates accepted her protest. But coaches and commentators criticized her actions, if only for distracting from the team. Auriemma, among others, insisted that whatever a player's right to speak, she did not have right to be part of the UConn women's basketball team (or to speak through her participation in the UConn women's basketball team). I am happy to see he has come around on this.
Thursday, July 21, 2016
Athlete speech and team dynamics
Last week, NBA stars Carmelo Anthony, Chris Paul, LeBron James, and and Dwyane Wade kicked off the ESPY Award telecast with a call for athletes to become politically engaged, particularly around the issues of violence by and against police. Players on the Minnesota Lynx wore black warmup shirts with white lettering commemorating Alton Sterling, Philando Castile, and Dallas shootings, which prompted four off-duty police officers to walk-off their security jobs there. Several other teams followed suit by wearing plain black warmup shirts, which prompted the league to fine each team $ 5000 and each player $ 500, citing its uniform policy. The league president praising and expressed pride in the players' "engagement and passionate advocacy for non-violent solutions to difficult social issues," while demanding that they "comply with the league's uniform guidelines." This, of course, is a classic example of how neutral policies can be used to restrain speech, while allowing those doing the restraining to claim to support the speech. Players responded today with a media blackout, refusing to answer basketball-related questions and only talking about the political issues at the heart of their protests. Since the league no doubt has rules about speaking with the media, expect the WNBA to follow with more praise for the players' political courage, more citation to "neutral" rules, and more fines for that political courage.
This is playing out on a smaller stage than if it were male athletes in football, basketball, and baseball. But this story illustrates important issues about athlete speech for team, as opposed to individual, sports. The athletes we remember as being most politically engaged played individual sports--Muhammad Ali, Arthur Ashe, John Carlos, Billie Jean King, Jesse Owens, Tommie Smith. A lot of the activism from Jackie Robinson and Jim Brown came after each had retired and, in any event, rarely came out on the field (except to the extent Robinson's very presence on the field was political). All athletes risk their standing with the public and fans who may object to their speech (recall Michael Jordan's apocryphal "Republicans buy shoes, too"). But team-sport athletes face another hurdle--their expression implicates the financial, business, and other concerns of teams and leagues, who have their own incentives to limit this speech. Neutral rules designed to promote the sport (speaking to the media) or to promote team unity (uniform rules) provide the perfect weapon of control, allowing leagues or teams to shut the players down without appearing to be stopping them because of their message.
The question then becomes the extent to which "athlete speech" includes (or should include) the liberty to speak through the game itself and the platform the game provides. In other words, the extent to which LeBron James not only should be able to rely on his fame to get his message out, but also the platform of the game itself to do so.
Trump, Turkey, and the "problem" of civil liberties
Donald Trump's interview with The New York Times would be the story of the day, but for Ted Cruz's act of political courage/political suicide. Trump was asked about the situation in Turkey, where President Recep Endrogan survived a coup attempt and is consolidating power, declaring a three-month state of emergency, purging political rivals, and imposing restrictions on speech and press. Trump's short answer was that the US has too many problems at home and has no right to lecture other countries about civil liberties.
Some have read that as Trump saying that we have issues with limits on civil liberties here, so we cannot speak to anyone else about their own limits. That is what people usually mean by "no right to X"--we don't have the right to lecture anyone about X, because we do X ourselves. It is an argument about hypocrisy and inconsistency between word and deed.
But a closer look at Trump's remarks reveals the opposite. Trump is arguing that we have anarchy here, implicitly because we have too many civil liberties. So we need to restore order (which fits with his new Nixonian Law-and-Order theme) before worrying about urging other countries to be less repressive on their own people. It is an odd use of the "no right to" argument, but it better fits with his views of dissent and speech he does not like.Here is the exchange (from the transcript, which The Times released when--stop me if you heard this one before--the campaign denied Trump had said what the newspaper reported).
SANGER: Erdogan put nearly 50,000 people in jail or suspend them, suspended thousands of teachers, he imprisoned many in the military and the police, he dismissed a lot of the judiciary. Does this worry you? And would you rather deal with a strongman who’s also been a strong ally, or with somebody that’s got a greater appreciation of civil liberties than Mr. Erdogan has? Would you press him to make sure the rule of law applies?
TRUMP: I think right now when it comes to civil liberties, our country has a lot of problems, and I think it’s very hard for us to get involved in other countries when we don’t know what we are doing and we can’t see straight in our own country. We have tremendous problems when you have policemen being shot in the streets, when you have riots, when you have Ferguson. When you have Baltimore. When you have all of the things that are happening in this country — we have other problems, and I think we have to focus on those problems. When the world looks at how bad the United States is, and then we go and talk about civil liberties, I don’t think we’re a very good messenger.
SANGER: So that suggests that you would not, as, say, President Bush did, the last President Bush, make the spread of democracy and liberty sort of a core of your foreign policy. You would say, “We need allies, we’re not going to lecture them about what they do inside their borders.”
TRUMP: We need allies.
SANGER: And lecture inside their borders?
TRUMP: I don’t know that we have a right to lecture. Just look about what’s happening with our country. How are we going to lecture when people are shooting our policemen in cold blood. How are we going to lecture when you see the riots and the horror going on in our own country. We have so many difficulties in our country right now that I don’t think we should be, and there may be a time when we can get much more aggressive on that subject, and it will be a wonderful thing to be more aggressive. We’re not in a position to be more aggressive. We have to fix our own mess.
His point is that we should not be worried about civil liberties elsewhere. But implicitly he is arguing that we also should not be worried about civil liberties at home, but instead about the government gaining control against the "riots and the horror"and "our own mess."*
[*] The party flip between optimism and pessimism and how great America is right now is fascinating. It will be interesting to see how and if the Democrats strike at this theme next week.
Also interesting is Trump's reference to "Ferguson" as a single word with an understood meaning. But what is that meaning? To Trump, Ferguson means riots and destruction of property. To others, however, Ferguson means a police officer shooting an unarmed Black person with impunity, generally abusive police practices, and a massive overreaction to peaceful-if-angry public assembly speech, and protest. Trump obviously hopes that substantial numbers of people adopt his meaning of the single word. On the other hand, there is a consent decree in the Eastern District of Missouri--explicitly requiring changes in policy and training with respect to responding to public expression, handling of encounters with suspects, and the operation of fine offensives in municipal courts--that suggests the former may be the better narrative. So is the problem of Ferguson too much speech (or at least too much speech critical of police)?
Similarly, what does Trump understand "Baltimore" to represent? Wrongfully prosecuted police officers? Is outrage at the death of a person in policy custody part of the riots, horror, and mess in this country?
Saturday, July 16, 2016
Free assembly at the Cleveland RNC
Tabatha Abu El-Haj (Drexel) writes at Slate about the looming First Amendment disaster at next week's Republican Convention in Cleveland, given the severe restrictions on public assembly and speech the city has imposed and the current desiccated state of this area of the First Amendment. And this will be an improvement over what the city attempted; stricter regulations (for example, pushing protesters more than three miles away from the site of the Convention) were declared invalid by a federal district court.
Part of Tabatha's argument is the following:
While policing the line between constitutionally protected protest and unlawful assembly is unquestionably difficult, the fact is that cities hosting party conventions tend to do a poor job of distinguishing between the violent and the merely angry elements of assemblies. Nonviolent protesters are frequently charged with various misdemeanors from disorderly conduct and breach of the peace to trespass and disobeying lawful police orders for any minor breach of the public order. Denver police charged some Occupy participants with improperly honking car horns. Even if those charges are subsequently dropped, as with those in Denver, it will not matter much to the individual who was removed from the scene while attempting to exercise her First Amendment rights.
I will add a procedural hook to this. This individual could sue for damages for the improper arrest or for removing her from the scene. But the arresting officers likely have qualified immunity. And any damages (against non-immunized officers or the city) will be limited, if not solely nominal, damages the city already has worked into the cost of doing business. The real financial risk to the city is attorneys' fees for prevailing plaintiffs, which similarly can be worked into the cost of doing municipal business (although they might be more substantial than the plaintiff's damages),* and, in any event, do nothing for the person whose rights were violated. These procedural realities also incentivize cities to do what Cleveland did here. Enact extreme restrictions (even ones officials believe cannot survive constitutional scrutiny) on the eve of the event, knowing there will not be enough time to redraft better (or substantially better) regulations. Even if, as happened here, a court steps in to declare invalid the extreme violations, a court, aware of time constraints, is unlikely to do the same for the entire plan and make the city start over. To the extent those regulations produce First Amendment violations during the Convention, the city can deal with the limited costs (nominal damages and attorney's fees) in ex post litigation.
[*] I have been arguing that attorneys' fees represent the greatest incentive for departmentalist states and executives to fall into line with judicial precedent.
Thursday, July 14, 2016
As if on cue . . .
The ACLU and several other organizations have sued Baton Rouge, citing, among other events, the incident described in this story and this post. The requested TRO goes after several specific practices, including too readily declaring an assembly unlawful, arresting protesters for stepping into the street in the absence of any obstruction of traffic, and dispersing protesters off the sidewalks and into the street and then arresting them for being in the street. The suit also names the DA and seeks to enjoin continued prosecution of those previously arrested.
Note that there is no individual plaintiff named in the action. Plaintiffs are the local ACLU, local National Lawyers Guild, and three Louisiana advocacy groups.
Wednesday, July 13, 2016
Violence and the future of public assembly
Since the Dallas shootings, I have been concerned about the possible effect on public protest. Local governments already cite vague concerns for public safety and risks of violence as grounds for restricting public assemblies, marches, and protests, and courts already accept those concerns too easily. An event such as the Dallas shooting makes those concerns more than abstract and allows government to argue for greater restrictions (if not for closing the streets entirely) with a "it-could-happen-here" argument. Reports of a link between a Baton Rouge burglary and a plot to shoot police (which the tiny conspiracy theorist in my brain finds a bit too convenient) have been used to justify police breaking up protests there.
See, then, this post from Michael Dorf, arguing that the threat of violence is unavoidably baked into the idea of public assembly and protest. This means government efforts to maintain order and safety, while legitimate, cannot be allowed to render hollow or meaningless the rights to assemble, speak, and petition. The balance to be struck must account for the risk inherent in the very nature of the First Amendment enterprise.
Tuesday, July 12, 2016
Random free speech stories for a Tuesday
1) It is sad that an even-handed attempt to mourn police and victims of police violence--and thus to show that the problem affects all sides--nevertheless devolves among those who cannot accept the possibility that some police shootings are unjustified, that an antagonistic relationship between law enforcement and those they police cannot hold, or that police conduct is a legitimate subject of public discussion and protest.
2) If this story is even a bit true, I can hear the consent decree language ordering Baton Rouge to establish policies and training regarding "the right to criticize or complain about police conduct without being subject to retaliation" and "the right to engaged in lawful public protest." Part VIII offers a good start, as the same things keep coming up.
3) If Black Lives Matter is responsible for the "horrible" and "divisive" rhetoric of some protesters, then is Donald Trump responsible for the rhetoric of some of his supporters, not to mention himself? And will anyone point that out to Trump? Obviously, Trump is not responsible for his protesters' rhetoric. But then neither is BLM. And Trump cannot have it both ways.
Monday, July 11, 2016
FIRE podcast on Nazis in Skokie
The latest edition of FIRE's So to Speak podcast features an interview with Aryeh Neier, who was the ACLU's Executive Director in the late 1970s, when the Nazis marched in Skokie and wrote a book on the controversy. Neier makes an interesting point in the interview--this case is a strong symbolic victory for speech, although not necessarily precedential victory, as the case really ended in the Seventh Circuit. Nevertheless, this case is the reverse slippery slope for free-speech advocates--"If the Nazis can march in Skokie, then ____ is permissible."
Saturday, June 04, 2016
Muhammad Ali and the Law
Some law-related thoughts following the death of Muhammad Ali.
Ali's direct contribution to U.S. law is the Supreme Court decision (in a case captioned Cassius Marsellus CLAY, Jr. also known as Muhammad Ali) reversing his conviction for refusing Army induction. It was a per curiam opinion, decided on fairly narrow grounds, so nothing that would become canon or significant precedent. Ali had sought a conscientious-objection exemption, which at the time required that the person have a sincere, religiously grounded objection to war in any form. Although a hearing officer found all three elements satisfied and recommended to the Appeal Board that his status be recognized, the Department of Justice wrote a letter to the Board recommending rejection of status, based on DOJ's purported findings that Ali failed to satisfy any of the three elements. The Appeal Board denied c/o status, disregarding the hearing officer's recommendation and without explanation, although the only other available basis was the DOJ letter. Before the Court, however, the government conceded that Ali's objection was sincere and religiously based. That brought the case within precedent holding that when the basis for a selection-service (or any other government) decision is uncertain but some possible bases are unlawful or erroneous, the entire decision must be vitiated. Rather than speculating whether the Board might have relied on the one remaining basis (the objection not being to war in any form), the Court rejected the Board's decision in toto and reversed the conviction. Justice Douglas concurred; he argued that the evidence showed Ali objected to all but Islamic war against nonbelievers, a "matter of conscience protected by the First Amendment which Congress has no power to qualify or dilute" by limiting c/o status only to those who object to all war in all forms. Justice Harlan concurred in the result, concluding that the DOJ letter could be read as claiming that Ali's assertion of C/O status was untimely, an error that called for reversal under the same line of cases as the majority relied on. The inside-the-Court workings leading to the decision were the subject of the otherwise-silly Muhammad Ali's Greatest Fight.
Ali is lionized for this stand, often through the modern laments about professional athletes refusing to take political stands or become politically involved the way Muhammad Ali did. But this has always seemed unfair. Ali was not lionized at the time. His actions were unpopular with the press and much of "mainstream" America (which did not like Ali to begin with, regarding him as an uppity loudmouth). The exception was African-Americans and young anti-war activists on college campuses. He was stripped of the heavyweight title and denied a license to fight in any state, most importantly New York (Madison Square Garden remained the center of the boxing world), costing him 3 1/2 years at the prime of his career. Although ultimately vindicated by SCOTUS, it came at tremendous cost to his career. Modern athletes asked to take political stands almost certainly do not face similar exile from their sports. But to normalize Ali* as the expectation for high-profile athletes seems unfair, a burden we do not place on other people, even other famous people, anywhere else in society.
[*] The other person forwarded as the aspiration is Jackie Robinson. But Robinson was somewhat forced to take a stand by circumstance--being the first African-American player in modern baseball made him inherently political. And the abuse Robinson took no doubt took a psychological and physical toll that contributed to him dying at age 53.
Update: Case in point from the Daily News, extolling Ali for "offer[ing] a roadmap for today’s athlete to be an activist," while 1) eliding that in 1967, this columnist almost certainly would have been lining up to excoriate Ali for talking to much and dodging the draft, and 2) perpetuating the idea that the only true activist is the one who sacrifices millions of dollars and the prime of his career, something we ask of no one else. The Big Lead provides a good critique. At the same time, it understates the point in saying "[t]here are few, if any, athletes who can match Ali’s legacy fighting for social issues. That’s what made him such an important figure." Ali's legacy is, in part, a unique product of circumstances and initially unlawful action by the United States. That is why no one can match it.
Further Update: This Slate piece goes into detail on a lot of these themes, including more background on DOJ's efforts to influence the Appeal Board and on the prosecution, which were influenced by congressional and administration pressure.
Friday, May 27, 2016
Litigation financing and the First Amendment
I wanted to share two takes on the news that tech billionaire Peter Thiel has been funding Hulk Hogan's lawsuit against Gawker Media. Simona Grossi (Loyola-LA) argues there is nothing inherently wrong with Thiel financing someone else's litigation, which represents a different type of third-party litigation financing, although she suggests that due process may require transparency in such funding arrangements.* Slate's Mark Joseph Stern argues that the problem is not Thiel funding the litigation, but that the litigation is possible because of elected state judges and state privacy torts that may not sufficiently leave room for free speech.
[*] In discussing litigation financing, Grossi mentions public-interest organizations providing free/reduced-fee representation. But she does not mention the role of attorneys' fees for many of these organizations, which affects how that financing model operates. Of course, the court knows when attorneys' fees are potentially in play, so any transparency concerns are addressed.
Both argue that Thiel's funding activities are protected by the First Amendment, although for different reasons. Stern finds support from NAACP v. Button and constitutional protection for ideological litigation, while Grossi finds support in an analogy to campaign finance. The answer, I think, is a combination of these.
Button does not do it alone, because the case was less about the NAACP financing litigation than about it soliciting clients to bring litigation (financed, obviously, by the NAACP, but that was not the focus in the case). Plus, the NAACP was, in some sense, seeking to vindicate its organizational rights (or those of its members) through litigation. It is harder to conceptualize Thiel as vindicating his own rights. While he benefits from destroying Gawker, it is only in the way that everyone benefits from the deterrent effects of tort liability (either because Gawker stops publishing mean things or because Gawker stops publishing at all). This seems different than the NAACP desegregating the schools, where the precedential and remedial benefits of a judicial declaration of the unconstitutionality of segregated schools are more direct. That distinction also may relate to the litigation financed--challenges to the constitutional validity of state laws of general applicability as opposed to individual tort suits for damages against a private entity.
But Button does some work for the campaign-finance analogy. Money is not speech. But speech costs money, so restricting the money that can be spent on speech necessarily limits speech.** Under Button, litigation is First Amendment activity.*** It follows that spending money on litigation also must enjoy constitutional protection. That does not get us all the way there, obviously. But it at least forces Thiel's critics to identify what makes this financing model different and uniquely harmful and to show why any harms cannot be addressed in other ways (such as through the disclosure that Grossi suggests).
[**] As a general proposition, even critics of Citizens United and current campaign-finance doctrine would recognize that, for example, government could not limit the amount of money a company can spend on (truthful non-misleading) advertising or on printing its newspaper or magazine.
[***] The Court does not specify whether it is speech or petition activity, although it should not matter. Petition activity costs money, just as speech does.
Lost in much of the hand-wringing is that Thiel's efforts, at least with respect to Hogan, will likely fail. It seems unlikely that the judgment against Gawker will stand (in light of both First Amendment considerations and the trial court's evidentiary rulings), certainly not in the ridiculous amounts imposed. Of course, Thiel's goal may have been simply to force Gawker to spend millions of dollars on its defense, which it has done, even if Gawker does not also have to pay millions in damages. If so, the answer may lie in fee-shifting, although drafting a fee-shifting rule without it turning into "loser pays" will pose its own challenges.
Wednesday, May 25, 2016
Frank Easterbrook, the First Amendment, and the Chicago Cubs
My colleague calls this case the trifecta. Interestingly, news reports (BNA, NLJ, etc.) have focused on the court of appeals affirming the denial of the preliminary injunction and rejecting the argument that the flat ban on sales on the adjacent sidewalks violates the First Amendment. But the court spent a lot of time on possible First Amendment defects in a related ordinance requiring all peddlers to be individually licenses, except those selling newspapers. The court questioned both the exception for newspapers under Reed v. Gilbert and the licensing requirement as a whole, to the extent it disadvantages a small publication that relies on individual part-time sellers. The opinion offers the plaintiffs arguments to make in moving for a permanent injunction on remand.
And Easterbrook could not resist starting with this line: "The 2016 season is under way, and the Cubs are doing well on the field. Left Field hopes to do as well on appeal."
Wednesday, April 27, 2016
Additional thoughts on Heffernan
SCOTUS on Tuesday decided Heffernan v. City of Paterson, holding 6-2 that a public employee stated a First Amendment claim when he was demoted on supervisors' erroneous belief/perception that he was engaged in protected political activity, even if he was not. Justice Breyer wrote for the Chief, Kennedy, Ginsburg, Sotomayor, and Kagan; Justice Thomas dissented, joined by Alito. I analyzed the opinion for SCOTUSBlog.
A few additional thoughts on the decision and the case after the jump.The line-up makes sense, given the First Amendment predilections of the Chief and Kennedy, as well as those of Alito, in the other direction. I had some doubt following argument, especially in light of how the Chief and Kennedy both have voted in First Amendment cases touching on the government's institutional interests. (This discussion between Geoff Stone and Adam Liptak explores this institutionalist tendency).
The unspoken feature of this case is qualified immunity--I do not see how any First Amendment right was clearly established at the time of Heffernan's demotion, just given the divide within the Court. Yet it has not come up. I thought that Heffernan might have sought reinstatement to his previous position as detective, an equitable remedy to which immunity would not attach. But both the majority and the dissent spoke of this only as an action for damages. The Court remanded for further consideration of other First Amendment issues, but did not mention immunity as a continuing issue for the lower courts. [Update: Duh. There is no discussion of qualified immunity because the claim is against the City, which cannot assert immunity. As to any claim against the individual, Anon's suggestion would be an intriguing way around the problem]
Finally, the latter part Thomas's dissent, distinguishing harm from violation of a right, seems to illustrate how standing and causes of action have been improperly conflated. Thomas insists that a plaintiff states a § 1983 claim only if the government "has violated Heffernan's constitutional rights, not if it has merely caused him harm." Unconstitutional conduct alone does not violate an individual's rights, even if that individual is injured, unless the conduct violates her rights.* Thomas offers an example of a blatantly unconstitutional law permitting police officers to stop motorists arbitrarily to check for license and registration. Such a law would violate the Fourth Amendment. And attempts to enforce the law may harm an individual, such as by causing her to deal with traffic delays. But if police do not stop that individual, she would not have a § 1983 claim, because any injury (traffic delays) did not amount to a violation of her Fourth Amendment right not to be unlawfully detained.
[*] Thomas frames this as whether that plaintiff falls within § 1983's zone of interests, citing Lexmark and confirming that zone of interests is now unquestionably a merits inquiry.
Thomas is right in that analysis. But it seems to me we ordinarily would talk about this as a matter of standing, not the merits of the § 1983 cause of action. For example, in Clapper, the Court found the plaintiffs lacked standing because they could not show that the challenged search program would be used to search the plaintiffs themselves. In Susan B. Anthony, standing was present because the plaintiffs had shown that the challenged law might be enforced against the plaintiff's speech. And if that same motorist brought a preemptive challenge to enforcement of the traffic-stop law, Thomas almost certainly would agree that she lacked standing because she cannot show that she will be stopped. So why did Thomas (who joined the "it's standing" majorities in SBA and Clapper) speak of it here as part of the § 1983 cause of action, a merits inquiry?
Perhaps it turns on the difference between prospective and retroactive relief. Thus, harm goes to the cause of action when the plaintiff seeks a remedy for harm that already has occurred, while it goes to jurisdiction when the plaintiff seeks a remedy for ongoing harm or harm that may occur in the future. Indeed, mootness only applies to prospective, but not retroactive, claims. But that is unsatisfying for two reasons. First, the distinction is not supported by the text of § 1983, which allows an individual who has been deprived of a right secured by the Constitution to bring an"action in law" (i.e., a claim for legal relief) or a "suit in equity" (i.e., a claim for equitable relief). The requirements for stating a cause of action under the statute do not vary with the type of relief sought, nor should the relief sought affect whether a statutory requirement is suddenly constitutionalized. Plus, prospective relief may be available for past harms in a case such as this one--there is no reason to believe Thomas's analysis would change had Heffernan sought reinstatement to remedy his previous demotion.
Alternatively, the distinction between harm/injury and right already is prominent in standing doctrine. For example, a party asserting third-party standing (e.g., doctors challenging abortion restrictions) must show their own injuries, although seeking to vindicate others' constitutional rights. On this view, whether the plaintiff has suffered an injury goes to standing, while whether the plaintiff's right has been violated goes to the cause of action and the merits of the claim. Thus, Heffernan did not present a standing problem because his injury (demotion) was clear; it only presented a statutory cause of action problem, because he had not been deprived of a right secured by the Constitution. But this seems an artificial distinction. And it is one that Thomas himself appears to disavow. He speaks of the plaintiff needing to show the "right kind of harm" to state a § 1983 claim, meaning harm resulting from a constitutional violation. In other words, Thomas defines actionable harm as harm occurring from violation of a constitutional right.
Tuesday, March 22, 2016
Bartnicki, Alvarez, and Hulk Hogan
Amy Gajda argues that Gawker (which, following Monday's punitive damages verdict, is on the hook for $140 million*) may not find the success it expects on appellate review, including if/when the case gets before SCOTUS. Amy tries to read the tea leaves from the various votes in Bartnicki v. Vopper, the Court's most recent privacy/First Amendment balance case; she concludes that the reasoning of five Justices in that case suggests a majority might have gone for Hogan. But we can do more with the vote-counting by looking at a more recent case--United States v. Alvarez (the Stolen Valor Act case). And all of it may tie into the Court's ongoing vacancy.
[*] Almost certain to be remitted, even if the liability decision stands.
Bartnicki applied the principle that government cannot punish the publication of truthful, lawfully obtained information on a matter of public concern except to serve a government need of the highest order. Although formally a 6-3 decision, in reasoning it was more of a 4-2-3. Justice Stevens wrote for a plurality of Kennedy, Souter, and Ginburg, applying that principle to its fullest. Justice Breyer, joined by O'Connor, argued for a much more even and flexible balance that, while supporting the free-speech position in that case, might not in different circumstances. Chief Justice Rehnquist, along with Scalia and Thomas, dissented. Gajda argues that, facing Hogan in 2001, a 5-4 majority may have affirmed the verdict.Of course, Bartnicki was a 2001 decision and only four Justices remaining on the Court. But Alvarez might provide a hint of where the current Court might go as to Gawker. Although not a privacy case, Alvarez involved a category of speech (knowingly false statements of real-world fact) that many believed was entirely without First Amendment value or any meaningful contribution to public debate. This was explicitly a 4-2-3 case with a similar line-up: Kennedy, with the Chief, Ginsburg, and Sotomayor; Breyer concurring with Kagan; and Alito, with Scalia and Thomas, dissenting. The two decisions are of a piece. The plurality in both cases adopted a strong speech-protective position, demanding a compelling government interest and finding that interest wanting. And Breyer's concurrences are of a piece--a call to avoid the rigidity of strict scrutiny in favor of the greater flexibility of intermediate scrutiny. In both, Breyer found the statute to violate the First Amendment as applied, while hinting that a different case might come out differently. (I was surprised that Kagan would go along with Breyer here).
To the extent we can read anything from prior case, I would argue that the voting in Alvarez and Bartnicki together suggests the following. At least four Justices--the Chief, Kennedy, Ginsburg, and Sotomayor--would be receptive to Gawker's First Amendment defense. Two Justices--Thomas (who dissented in both cases) and Alito (who dissented in Alvarez)--are generally unreceptive to most free-speech claims--will not be receptive. And two Justices--Breyer and Kagan--might apply less-exacting scrutiny to reject the First Amendment defense, given the greater privacy interests and the shakier news and information value of the video. And were Scalia still alive, Amy would be right that we might have a 5-4 Court affirming the jury verdict against Gawker.
Instead, we face a 4-4 Court. So like everything nowadays, it comes down to Maybe-Justice Garland or Justice Trump-Appointee. And what the Supreme Court of Florida does as the last court to hear the case before SCOTUS.
Saturday, March 19, 2016
Hulk Hogan and Complete Diversity
My best guess is that the $ 115 million verdict (likely to be substantially increased when the jury considers punitive damages next week) in favor of Hulk Hogan (ne, Terry Bollea) against Gawker will not stand. From what I have read, the judge made a number of questionable evidentiary rulings and gave a jury instruction that minimized the role of the First Amendment. And some facts will be subject to independent appellate review because they implicate the First Amendment.
But I want to discuss a different question that I missed two years ago--why the case was in a Florida state court at all, where Hogan seems to have gotten some home cooking. Hogan sued Gawker and Heather Clem, the woman in the video; Clem and Hogan are both Florida citizens, destroying complete diversity. Gawker removed anyway, but the district court remanded, rejecting Gawker's argument that Clem was fraudulently joined (as well as an argument that the First or Fourteenth Amendments were necessarily raised by Hogan's state tort claims, creating federal question jurisdiction).
The common defense of the complete diversity requirement, most recently reaffirmed in Exxon Mobil, is that the presence of non-diverse adverse parties eliminates the local bias that is the primary rationale for diversity jurisdiction; Hogan would not receive the benefit of local favoritism because a Floridian is on the other side of the case. But that argument ignores the risk of prejudice against the outsider (as opposed to bias for the local), which is not eliminated by the presence of a local co-party. This is exacerbated when there is disparity in the regard in which the locals are held in that community, such that one side is more of the local community than the other. And it is exacerbated when the outsider-defendant is the real target of the action, the deep-pocketed "big bad."
For jurisdictional purposes, this case looks very much like New York Times v. Sullivan: You have a well-known southern local plaintiff suing a New York-based media outlet, with a locally unpopular individual defendant thrown-in to destroy complete diversity and keep the case in state court. And you have a jury rendering a verdict that sends a pretty clear message about what it regards as outrageous speech. The problem for Gawker is that SCOTUS is unlikely to bail it out the way it did The Times. So Gawker will be relying on the Florida courts to get it out of this First Amendment bind (from all reports, paying anything close to this amount will bankrupt the company).
Sunday, February 28, 2016
More on libel, New York Times, and Donald Trump
I still do not believe we are in any danger of having President Trump open up our libel laws, but let me add a few more thoughts. After all, as Ronald Collins reminds us, this is SOP for Trump--in September, his attorney threatened a multi-million-dollar lawsuit against Club for Growth over ads critical of Trump.
NYT v. Sullivan arose in a period in which state officials were using civil libel suits to create something akin to seditious libel--a prohibition on criticizing government, government officials, and government policy. Heed Their Rising Voices triggered five defamation suits (including Sullivan's), seeking a total of $ 3 million; the Times was a defendant in lawsuits throughout the state seeking more than $ 300 million. Until recently, my instinct would have been that no modern-day public official, particularly a national figure such as the President (or someone aspiring to that office), would sue or threaten to sue his critics. Part of that is driven by NYT--that doctrine exists precisely to stop public officials from suing their critics. But another part is that suing or threatening to sue would make an elected official look weak, greedy, and ineffectual--his feelings are being hurt, so he is running to the principal to complain, rather than responding in the public debate.
But Trump turns every bit of conventional wisdom on its head. Rather than seeing a libel lawsuit as making him appear weak, Trump supporters would seem to look at it as a sign of strength, that he is a fighter and willing to stand up to evil newspapers. So Trump may unwittingly be showing why NYT is so important and why it is not going away anytime soon.
Saturday, February 27, 2016
Things not worth getting worked up about, Part 671
Donald Trump insisting that he wants to "open up our libel laws" so media outlets can be sued "like [they] never got sued before." First, there is no federal libel law and Congress, especially Democrats, are not going to allow one to be enacted. (I still cannot tell if Trump truly believes he can unilaterally do the things he talks about; I have no doubt his supporters do believe it). Second, this is an incredibly speech-protective Court, including as to New York Times v. Sullivan, so the likelihood of the Justices overturning NYT (regardless of who replaces Justice Scalia) is precisely nil. So like much of what comes out of Trump's mouth, it cannot be taken seriously.
Which is not to say that Trump's views on free speech, especially as to public protest and dissent and the power of police to physically manhandle peaceful protesters, are not genuinely scary. They are. But the right to protest in public has become incredibly constrained, especially when protest happens within sniffing distance of the President; I doubt things would be so much different (or worse) under President Trump, only more blatant. That does not make this a good situation, only a common and unsurprising one.
Monday, February 22, 2016
Recency bias, Scalia's successor, and the First Amendment
There has been a lot of discussion about the fate of various likely 5-4 cases from this term and recent 5-4 decisions should Scalia's successor be appointed by President Obama or President Hillary Clinton. Ron Collins has a post on the 5-4 free speech cases in which a Democratic appointee likely would vote differently than Scalia, perhaps leading to these decisions being overturned in short order.
But I wonder how much it will matter for many of these cases. Citizens United is still only doing the work started by Buckley v. Valeo (for campaign-spending generally) and Bellotti v. Bank of Boston (protecting corporate speech), while overturning one outlier case (Austin v. Michigan Chamber of Commerce). Morse v. Frederick was a bad decision and a wide expansion of what qualifies as "in-school" speech, but students were losing most cases (especially involving t-shirts) just under the Tinker balancing. Garcetti v. Ceballos categorically removed job-related-speech from the First Amendment's reach, but the prior requirements under Connick and Pickering still largely worked against employees. In other words, many of these cases did not revolutionize First Amendment law or dramatically depart from prior law, as much as they sharpened already-speech-restrictive doctrine. The one exception may be the union-fee cases--both this Term's Friederichs, as well as two other recent cases questioning the permissibility of union-fees and leading us to Friederichs.
Thursday, January 28, 2016
Ferguson consent decree
DOJ has reached agreement with the City of Ferguson on a proposed consent decree resolving the threatened § 14141 action. It appears to attempt to address everything that went wrong there in 2014, as well as those practices that contributed to the general tension that had long existed. The order requires training and commitment to public First Amendment activity--peaceful protests, lawful public assembly, and video-recording of police activity--including a requirement that only the Chief of Police or Assistant Chief may declare an assembly unlawful and officers cannot disperse an assembly without that declaration. It limits and restricts "stop orders" or "wanteds," in which police initiate contact to enforce warrants. It requires the City to implement a body and dashboard camera program, with broad recording of most stops and interactions and public disclosure of recordings to the maximum extent allowed by state law. And it requires broad reform of municipal court practices and training and policies on use of force.
Saturday, January 23, 2016
Show (audibly), don't tell
Because of the Court's practices of only releasing argument audio at the end of the week, I wrote my argument recap on last week's Heffernan v. City of Paterson based only on the transcript. It was clear from the transcript how much the petitioner's attorney struggled, especially when asked about the availability of alternative state-law remedies and what those remedies would be. Listening to the audio drives home just how great that struggle was.
Wednesday, January 20, 2016
Individual right or government wrong?
I have a SCOTUSBlog recap of Tuesday's oral argument in Heffernan v. City of Paterson, which I had previewed. The issue is whether a public employee can state a First Amendment claim where he was demoted because the government believed he was engaged in expressive association, even though the government was actually wrong in that believe. In other words, if the government acts with the intent to retaliate but does not retaliate because there is nothing against which to retaliate, does it violate the First Amendment? Dahlia Lithwick describes the "extra-meta" tone of the argument.
It is interesting to look at this case in light of last week's argument in Friedrichs v. California Teachers Association. The Justices who seemed most critical of the petitioner's position in Heffernan (the Chief, Scalia, and Alito, and to a lesser extent Kennedy) were most solicitious of the employees in Friedrichs and seem most likely to hold that public employees cannot be compelled to pay agency fees to unions, even for collective bargaining activities. But if those positions hold, the practical results seem odd. It would free public employees from any compelled union participation because anything the union does (even negotiating higher wages) is potentially objectionable speech on a matter of public concern, then expand the circumstances in which public employees can be fired based on government presumptions about their associational activity, at least if those presumptions prove erroneous. It is as if that bloc of Justices views it as a greater First Amendment violation to be compelled to pay for another's speech than to be sanctioned for one's own speech
Tuesday, January 12, 2016
SCOTUS Preview: Political patronage and misperceived association
I have a case preview at SCOTUSBlog for Heffernan v. City of Paterson, to be argued next Tuesday, January 19. The case concerns whether a public employee can state a First Amendment retaliation claim where the government demoted him explicitly because of his supposed political activity, but where he actually was not engaged in any activity. The most recent We the People Podcast features Burt Neuborne (NYU) and John Inazu (Wash. U.) discussing the Assembly Clause and they touch on this case.
Sunday, January 10, 2016
Depressing frees speech story out of Wisconsin. The Wisconsin Interscholastic Athletic Association sent a letter to member schools asking student sections to tone it down. April Gehl, a three-sport athlete and honor student at Hilbert H.S. and the leading scorer and rebounder on the girls' basketball team, tweeted "EAT SHIT WIAA." She was suspended for five games.* According to reports, she has not taken down the tweet, but will not challenge the suspension.
1) There is an interesting state-action problem here. According to reports, the WIAA was notified about the tweet, then contacted the school via email, which instituted the punishment (apparently for violating the school's anti-profanity policy). There seems to be some dispute as to what the WIAA said or who insisted on the suspension. Gehl's mother said she saw the WIAA's email to the school, which included a snapshot of the tweet "with limited direction other than to 'please take care of it.'" The WIAA's communications director insists there was no such language, but that the tweet was shared "shared with members for their awareness." The school's AD simply said they were contacted and dealt with it in accordance with board policy.
[*] Fun with Wisconsin-in-the-news geography: One of the games she will miss is against Manitowoc Lutheran High School. Yep, that Manitowoc.
The school is obviously a state actor. State athletic associations may be state actors, depending on structure. We might (depending on who you believe) have a non-state-actor insisting that punishment be imposed by a state actor. So there is pretty clearly state action here, although how we get there could be a bit convoluted.
2) We need to give up the pretense that secondary-school students have First Amendment rights. Gehl was suspended for a tweet sent to the world, seen only by people looking on Twitter, that spoke about a matter of public concern (to a high school student). There is no indication it was seen by anyone while at school. It did not affect, much less disrupt, school activities--after all, the school did not even know about the tweet until later one. About the only link to make this "in-school" speech is that she sent the tweet from school. The problem seems to be the profanity, but profanity is supposed to be protected in non-school forums that do not cause an actual disruption. In any event, it would defy reality to argue that she would not have been punished if the tweet had read "Your policy is unwise, WIAA" (that is fewer than 140 characters). Yet one reason Gehl is not going to appeal is likely that she knows she will lose, because students are losing all of these cases.
Which is tragic. Government officials, the education system, and society cannot complain that "kids today" are apathetic, then punish them when they take stands on the things that matter to them, simply because those officials do not like the stance. That seems to be why we need a First Amendment in the first place.
3) Looking at the original sportsmanship request, the WIAA should do as Gehl suggests. Among the cheers that the WIAA now prohibits are "'You can’t do that,' 'Fundamentals,' 'Air ball,'** 'There’s a net there,' 'Sieve,' 'We can’t hear you,' the 'scoreboard' cheer and 'season’s over' during tournament play." In other words, it seems, any cheering directed towards the opponent. I guess students are limited to "Hooray, Team." In a different context (say, college sports), I would argue that these restrictions violate fans' free-speech rights (at least at a public school or arena), since they are not vulgar or lewd and do not cause disruption in the context of everyone screaming at a sporting event). Of course, then we go back to point # 2--students never win these cases.
[**] A study found that crowds chanting "air ball" all manage to hit the words in F and D, respectively, putting the chant in the key of Bb.
4) One additional thought: Gehl was suspended for the games, but not punished as a student. But what if the same tweet had come from a non-athlete (say, a student-fan or just a student who objects to stupid restrictions on protected speech)? Would the WIAA have cared? Would the suspension have been from school? Or was Gehl singled out because she is a student-athlete?
Thursday, December 03, 2015
Second Circuit Sides with the "Cannibal Cop"
Today, the Second Circuit (2-1) issued its long-awaited opinion in United States v. Valle--the so-called "Cannibal Cop" case. The court upholds the lower court's judgment of acquittal on Valle's kidnapping conspiracy charge and, joining the Fourth and Ninth Circuits, reverses his conviction under the Computer Fraud and Abuse Act.
A brief recap of the case: Gilberto Valle was convicted of a conspiracy to kidnap, kill, and eat several women based largely upon a set of 40 conversations he had via the website DarkFetishNet. He was convicted under the CFAA for accessing a police database to look up one of the women he had discussed with his alleged co-conspirators (obviously not for NYPD-related purposes). A year after his conviction, Judge Gardephe granted a Rule 29 motion solely on the kidnapping charge on the basis that the government had not sufficiently shown that Valle's online conversations were anything more than fantasy--Valle had thousands of conversations with at least 24 different people on DarkFetishNet, and the government failed to provide any reasonable basis for plucking out 40 "real" conversations from the thousands it conceded were "fantasy." All the conversations involved the same gruesome kidnapping and cannibalism scenarios, and if the prosecution's theory was true, he was planning on kidnapping three different women in three locations (in two different continents) on the same day. Moreover, the alleged conspiracies were contingent upon a number of elements--e.g., a human-sized oven, a secluded cabin in the woods--that didn't exist, and Valle repeatedly lied about and avoided giving any actually identifying information about the victims.
The Second Circuit largely adopts Judge Gardephe's reasoning and as well as the concerns (without citing) that Thea Johnson and I raise in a recent essay: "We are loathe to give the government the power to punish us for our thoughts and not our actions. Stanley v. Georgia, 394 U.S. 557, 565 (1969). That includes the power to criminalize an individual’s expression of sexual fantasies, no matter how perverse or disturbing. Fantasizing about committing a crime, even a crime of violence against a real person whom you know, is not a crime."I see at least three important aspects of this case:
First, as pointed out by Judge Straub's dissent, both Judge Gardepehe and the majority rather boldly set aside the jury's conclusion that Valle's conversations were not merely fantasy. Indeed, a number of other courts addressing Internet sex-related crimes have acknowledged that the defendant presented a potentially viable fantasy defense but nonetheless deferred to the jury’s assessment about the credibility of that defense. See, e.g., United States v. Dwinells, 508 F.3d 63 (1st Cir. 2007); United States v. Howard, 766 F.3d 414 (5th Cir. 2014). The court does really seem to be reweighing the evidence, but this reweighing is demonstrably infused with an awareness of the need to separate out fantasy from real crime. This is an issue that courts will increasingly be called upon to tease out in the Internet era, as people's intimate lives have become both more transparent and more easily admissible in court. Jurors sitting in a single trial are less likely to be sensitive to this need and are more likely to be swayed, as the court recognizes, by a sense of disgust or revulsion. As tempting as it may be to defer to jurors' common sense in these matters, the court recognizes the difficulty of soberly teasing apart fantasy from criminal intent. Relatedly, in an HBO documentary about this case (Thought Crimes), I was struck by an interview with one of the jurors, who said the jury was convinced Valle "wanted to do it." This, of course, is not the relevant inquiry.
Second, and relatedly, the court recognizes the limited probative value of Internet searches, namely that is inappropriate to conflate an interest or curiosity in a particular subject matter with an actual intent to move forward with that fantasy. "Valle’s Internet searches show that he was interested in committing acts of sexualized violence against women. Interest may be relevant evidence of intent, but it does not by itself prove intent." (p 21). Judge Straub counters that the jury could reasonably deduce that his inquiries showed criminal intent (p 57), but this again assumes that a reasonable person has a good grasp on how people use the Internet to explore sexual interests. There’s a growing body of research showing that people search a wide range of “wicked” thoughts online, and as legal scholars like Neil Richards have argued, search history is often an externalized recording of our inner thought processes. It therefore shouldn’t be conflated with probative evidence of our intended actions. As the majority in Valle acknowledges, “the link between fantasy and intent is too tenuous for fantasy alone to be probative.” (p. 4)
The "Cannibal Cop" case may seem like an anomalous case with a strange outcome driven by very strange facts. However, as I am examining in a new paper, it raises important questions that have and will continue to plague courts: what line should the law draw between the virtual and the real? what inferences can we draw from Internet and social media activity? how can judge, juries, and prosecutors adapt free speech and due process to unfamiliar and uncomfortable subject matter made newly transparent?
Wednesday, December 02, 2015
Posner, Porn, and Prison
Decision here. The Seventh Circuit, via Judge Posner, upholds warden's interception and confiscation of a number of pornographic magazines, but in extended dicta questions the wisdom of the prison's pornography ban. Judge Posner points to a number of studies showing little (or even inverse) correlation between violence and pornography in prison. Now, I have no idea what the prison's past experiences with inmate pornography have been, but I do think the nudge towards empirics and social science is an improvement over the "common sense" fears that tend to drive regulation of sexual content. For a good overview of this tendency, I highly recommend Allegra McLeod's California Law Review article from last year.
Monday, November 09, 2015
First Amendment activity all over the place
A quick shout-out on a bunch of recent events and issues, unified by being about free speech.
1) Approximately 30 African-American members of the University of Missouri football team have announced that they are suspending participation in all football activities--in other words, they are going on strike--until Mizzou President Tim Wolfe is resigned or fired. Student are angered over his non-response to a recent series of racially charged incidents on campus, most recently the display of a swastika made of feces. Although the entire team is not on strike, Head Coach Gary Pinkel and the non-African-American team members are supporting the strike and standing behind their teammates. There is a long history of athletes as political advocates. There also is a current hypocrisy--fans wondering why athletes aren't more political like in the old days, then lambasting those who don't "stick to the game." So it will be interesting to see how this plays out. [Update: Wolfe has resigned.]
2) Yale University is up in arms in a week-long back-and-forth over the conflict between cultural sensitivity in Halloween costumes and free speech. The gist is that the university sent a campus-wide email asking students to be sensitive in their choice of Halloween costumes, which prompted two (married) administrators to question whether the university should be dictating choices of Halloween costumes. That triggered an overwhelming response, with more than 700 students signing an open letter calling the administrators' comments "offensive" and having the effect of "invalidat[ing]" the existence of historically disadvantaged groups on campus. There have multiple protests, including several directed at the two administrators, calling for an apology and/or their resignations. The common theme, as always, is that this defense of free speech has rendered Yale an "unsafe space."
3) I finally got around to reading Bible Believers v. Wayne County (which I wrote about briefly). The majority opinion is a wonderful read, a tour de force on free speech, the problem of the heckler's veto, and the obligations of police in keeping the peace when conflicting groups collide. Unfortunately, I am not sure either the qualified immunity analysis (finding that the rights were clearly established) or the municipal liability analysis (finding that the county corporation counsel was a final policymaking in advising the police officers on the scene, triggering liability for the county). [Update: In light of this, the reversal on qualified immunity seems more likely, as does the Court not even giving the question a full merits hearing.]
4) The primary dissent in Bible Believers is also interesting for the way it explores the problem of minority and majority speech, with the assumption the Bible Believers were a majority group who had succeeded not only in shouting down a minority group, but in getting money from the government to allow them to do it. Here is the dissent's encapsulation of the case:
Yes, you can get the police to help you attack and disrupt something like a minority cultural identity fair, even if the police are not inclined to do so. Tell the police your plans ahead of time, and bring photographers. Get a determined group of disrupters and go in with the most offensive and incendiary chants, slogans, insults, and symbols—the more offensive the better. The object is to stir up some physical response. Then, when things get rough (your goal), insist that the police protect you, and (ironically) your First Amendment rights, by serving as a protective guard. The peace officers cannot at that point tell you to leave, even to avoid injury to you, because if the peace officers do that, they will have to pay you damages. Faced with the choice of allowing you to be an injured martyr (keep your cameras ready) or serving as a protective guard as the disruption escalates, the peace officers will doubtless choose the latter and become your phalanx. It's a win-win situation for you, and a lose-lose situation for the minority group putting on the fair.
The court's opinion insists that minority/majority should have nothing to do with the First Amendment analysis. But the dissent framing does relate to Mark Tushnet's concerns about competing hecklers. The answer, in part, is to recall that "heckling" is protected speech--that is, assuming time and place is appropriate, the First Amendment protects me in trying to shout down a competing speaker. It only becomes a heckler's veto--and a First Amendment violation--when the state steps in to formally support one heckler by shutting down the other through legal sanction or force.
Wednesday, November 04, 2015
Epps on Feiner
Garrett Epps writes in The Atlantic about the continued effect of Feiner v. New York and the hecklers' veto in the First Amendment, especially as it affects minority groups whose speech may be subject to greater audience abuse and more concerted efforts by protesters to interfere. Epps' jumping-off point is the divided en banc Sixth Circuit decision in Bible Believers v. Wayne County, which held that police should have protected a Christian group protesting at the Arab International Festival in Dearborn, MI.
Update: Mark Tushnet discusses the Epps piece and describes what Tushnet calls a "puzzle" about hecklers vetos in this case. We actually had competing hecklers--1) the Bible Believers were heckling the Festival and its participants (themselves engaged in expressive activity) and 2) the festival participants tried to shout down the Bible Believers--each trying to veto the speech of the other. And there has not been another Arab International Festival since the one in 2012, meaning heckler # 1 was successful in its efforts, while also being found by the Sixth Circuit to have been subject to a hecklers' veto by heckler # 2. In other words, Tushnet argues, "the people protected against a heckler's veto used their First Amendment rights to induce others not to exercise their First Amendment right."
Tuesday, October 20, 2015
The rival of my rival is . . .
This defies words. (H/T: Josh Blackman). Westboro Baptist yesterday picketed outside the Rowan County Clerk's Office in a protest of Kim Davis, for her sins of being divorced and of failing to obey her oath to follow the law. Apparently "all sin" is "awful," so adultery, same-sex marriage, and oath-breaking all stand on the same footing.* I wonder what LGBTQ groups are thinking right about now.
* Never mind that Davis does not violate her oath by not following SCOTUS precedent--I do not expect the Westboro folks to understand the precedent/judgment distinction).
Monday, October 12, 2015
Baseball and viewpoint discrimination?
As students are aware of my baseball allegiances, I am getting many questions and comments from students about the Cubs current position in the baseball playoffs. One student shared this story from last week--a professor at the University of Illinois moved the mid-term exam for a student because the student had obtained tickets to last week's National League Wild Card game in Pittsburgh.
Viewpoint discrimination? What about the Cardinals fans who no doubt are in the class?
Friday, October 09, 2015
Picking our free speech stories and heroes
Interesting discussion by James Wimberley (RBC) about Giordano Bruno, a Dominican friar burned for heresy in 1600. Bruno espoused all manner of contrarian ideas--often without proof--including that the stars floated in infinite space surrounded by their own planets and life. Bruno has been somewhat lost to history, overtaken by Galileo, who was convicted by the Inquisition 30 years later, as the great story to illustrate the importance of epistemological humility and of defending ideas that run contrary to those of the governing authorities. (The first episode of the Cosmos reboot, with Neil DeGrasse Tyson, told Bruno's story).
Wimberley argues that "Galileo is far too easy a test case for freedom of speech" and that the real challenge is a case like Bruno. Galileo was "demonstrably right" on a matter of scientific fact, meaning the censors were demonstrably wrong. Bruno was a "brilliant crank" who happened to be right about one thing, albeit without actual proof (Wimberley compares him to the people we regularly meet on the internet). Thus, the argument for defending Bruno's speech is different than for defending Galileo's--we defend Bruno "not on the grounds that he was right by chance on one thing, but simply that he was entitled to express opinions that were his own and not those of approved authorities." Moreover, Galileo suffered a forced and formal abjuration (Eppur si muove?) and a "fairly open" house arrest (among his many guests over the years was John Milton, who discussed the meeting in Areopagitica). That is nothing compared to being executed for the ideas one espoused.
Thursday, September 03, 2015
Tinkering with the machinery of marriage
Jonathan Adler explains why Kim Davis cannot, and should not be able to, use her personal religious beliefs to refuse to issue licenses to same-sex couples; if her conscience prevents her from doing this, she must resign. Adler points to a 2002 essay by Justice Scalia, in which Scalia explained why, if he believed capital punishment immoral, he must resign from the bench--his personal morality cannot override his judicial obligations. Adler argues that Davis similarly cannot use her personal religious morality to refuse to participate in (paraphrasing Harry Blackmun) the machinery of marriage.
But is there a middle ground between violating religious beliefs and resignation--recusal. Could a Justice Scalia whose religious views prevent him from affirming a death sentence recuse from all such cases? If so, that seems to be what Davis is doing here--recusing herself from the one function that runs afoul of her beliefs, while being ready and willing to perform other functions, even as to same-sex couples.
I am not suggesting Davis should win--she shouldn't. But does the reason have less to do with an absolute prohibition on this type of moral refusal to perform a public function and more with whether the attempted accommodation sufficiently protects the rights of couples seeking marriage licenses?
Friday, August 14, 2015
Why marriage licenses?
A question about the religious opt-out arguments surrounding same-sex marriage. Note that I ask this question as someone who does not believe such opt-outs should be allowed and who believes that clerks and other public officials should lose these cases. I also ask as someone who does not share the particular religious views driving the discussion:
What is so special about issuing marriage licenses?
All of the action has been around clerks and clerks offices having to issue licenses to same-sex couples and demanding opt-outs from that ministerial task based on deeply held religious beliefs. But it seems to me that public officials and employees are required to process and handle all sorts of forms, requests, and documents that require them to recognize and treat as married same-sex couples. And this would seem to be just as much in violation of their deeply held religious beliefs. To name just a few:
• Granting a second-parent adoption to a same-sex couple (which requires a finding that the adopting parent is the spouse of the biological parent)
• Processing a death certificate listing a same-sex spouse (this was the claim at issue in Obergefell itself)
• Processing the paperwork for a person to receive health insurance and benefits from her state-employee same-sex spouse
• Processing a name change on a drivers' license for a same-sex couple who married and want to combine names or where one person wants to take the other's name
• Processing a joint tax return for a same-sex couple
I am sure there are others that I am not thinking of. And that is before we get into private actors and public-accommodation laws. Or less misiterial issues, such as police officers responding to domestic-violence calls or hospital staff allowing a person to make medical decisions (without a written advance directive) from a same-sex spouse. Yet we do not hear about similar opt-out requests in any of these contexts. And when state officials, such as Texas AG Ken Paxton, endorse these accommodations, they only spoke about protecting against having to issue licenses and never these or similar duties.
Wouldn't the religious-objection logic apply equally to each of these situations? And if not, why not?
Thursday, August 13, 2015
A first take on recalcitrant county clerks
Judge Bunning of the Eastern District of Kentucky preliminarily enjoined the county clerk of Rowan County from enforcing a policy of declining to issue all marriage licenses so as to avoid having to issue licenses to same-sex couples. This is the first detailed challenge to a county clerk refusing to abide by Obergefell and state orders to comply with Obergefell.
Update: The office turned away a same-sex couple (although not the plaintiffs) this morning (H/T: Josh).
Thoughts after the jump.
1) The policy involved here was especially broad. The clerk did not argue that she should not personally have to issue licenses but that another staffer in the office would. Rather, she objected to licenses being issued in her name as the county clerk, insisting that doing so both compelled her to speak and cause her to endorse and enable conduct that violates her religious beliefs.
2) The case was less about Obergefell than about the general fundamental right to marry (which, under Obergefell, applies equally to same- and opposite-sex couples). The right was substantially burdened for all couples either having to go to a neighboring county to receive a license or get the license from the county judge (who is authorized to issue licenses if the clerk is unable to do so). Interestingly, unlike the Fifth Circuit in the clinic-regulation cases, the court recognized that requiring people to travel (perhaps as long as an hour) to another county could burden those who like the financial, physical, or practical means to travel and thus should not be considered a less-burdensome alternative.
3) The court held that Kentucky county clerks act as state, rather than county, officials in making office policies with respect to issuing marriage licenses. This does not affect an action for injunctive relief. But it does affect the potential for plaintiffs to pursue damages against recalcitrant officials and offices, which is another tool for ensuring compliance with Supreme Court precedent. Damages are not available against state (as opposed to local) entities, so the clerk's office cannot be sued for damages,* although the clerk herself could be sued both for her own refusal to issue licenses, as well as for her role in supervising or ordering her employees not to issue licenses. But being able to sue the office means the plaintiffs would not have to deal with qualified immunity, which is not available to municipalities. The clerk herself can raise qualified immunity, which means damages are not going to be available, at least until a significant body of law builds up.
[*] The court here attributed it to the Eleventh Amendment, a common and unfortunate mistake. Section 1983 (the source of a constitutional damages action) is § 5 legislation that, at least in constitutional cases, is congruent and proportionate to the rights protected by § 1 of the Fourteenth Amendment. The problem is that the Court held that Congress did not abrogate sovereign immunity because "persons" in § 1983 does not include sovereigns. But, as the doctrine developed, Congress could have done so. Thus, the unavailability of damages against the state on constitutional claims is a product of statutory interpretation, not the Constitution.
Update: Note the nuance with respect to the couple denied the license this morning. The clerk is not in contempt because the injunction only protects the five named couples and only obligates her to issue licenses to those five couples. This new couple has to go back to Judge Bunning (either in a new lawsuit or by intervening) and have the injunction extended. Then someone can hold the clerk in contempt--which, frankly, is exactly what she is hoping will happen.
Further Update: This story reports that one of the plaintiff couples (including the named plaintiff) also tried to get licenses on Thursday and were denied. And now the clerk can be held in contempt.
Monday, August 10, 2015
History of satire
I have been radio silent for the past couple weeks, trying to put the final touches on a new article for August submission (more on that in a few days, hopefully). So, in honor of Jon Stewart's final episode last week, I will do a "hey, check-this-out" post, recommending this week's Backstory podcast, National Lampoon: Satire in American History, and the accompanying essay on the role that satirical magazines played in the 1884 presidential election (Cleveland Defeats Blaine).
I stopped regularly watching Stewart (I would watch pieces online, but it stopped being appointment viewing), largely because at some point I became unable to watch satire of a media and political landscape that is so ridiculous as to be self-satirizing. Making fun of it seemed redundant. Still, I enjoy discussions of satire as a form, especially as it implicates the First Amendment (the podcast features Rod Smolla talking about Hustler v. Falwell) and current politics (there is a short segment on why conservative satire does not catch on to the same degree).
Wednesday, June 24, 2015
Policing False Speech in Political Campaigns
I'm working on the update memo for my Mass Media Law casebook while simultaneously working on a new edition, which means I'm coming across some interesting cases I missed when they came out. One of these is Eighth Circuit's decision in 281 Care Committee et. al. v. Arneson, No. 13-1229 (Feb. 13, 2014), which strikes down a Minnesota law attempting to assign administrative law judges and county attorneys the job of policing the truth of statements partisans make for or against ballot initiatives. Arneson involved a challenge by advocacy organizations to the constitutionality of a Minnesota law making it a gross misdemeanor for a person to prepare or publish a political advertisement or campaign materials supporting or criticizing “a ballot question, that is false, and that the person knows is false or communicates to others with reckless disregard of whether it is false.” Minn.Stat. sec.211B.06, subd. 1. Under the statute, any person can trigger an investigation by an administrative law judge to determine whether probable cause supports the complaint. Upon such a finding, the ALJ may refer the case to a panel of three ALJs for further determination or may refer the matter to a county attorney to prosecute.
A district court held that the statute served a compelling interest in preserving fair elections and preventing frauds on the electorate. The U.S. Court of Appeals for the Eighth Circuit reversed. The Eighth Circuit held that the advocacy organizations had standing to challenge the statute and that the statute was a content-based regulation of political speech that violated the First Amendment. The district court, citing the plurality and concurrences in United States v. Alvarez (striking down the Stolen Valor Act), determined that the appropriate constitutional standard was intermediate scrutiny, but the Eighth Circuit distinguished Alvarez because it did not involve core political speech; moreover, the court noted that the false assertion criminalized by the Stolen Valor Act--that one received a military honor one did not receive--is verifiable objectively. In contrast, the Minnesota law targeted "false" political speech that was likely to include opinion or other unverifiable political speech. The court therefore concluded that strict scrutiny was the appropriate standard to judge the Minnesota law.
Applying strict scrutiny the court determined that, regardless of whether Minnesota’s interests in passing the statute were compelling, the statute was neither necessary nor narrowly tailored but instead was “simultaneously overbroad and underinclusive, and [was] not the least restrictive means of achieving any stated goal.” The court bolstered this conclusion by observing that the State had failed to show “an actual, serious threat of individuals disseminating knowingly false statements concerning ballot initiatives.” Furthermore, and more central to the court’s analysis, was its determination that the statute “tends to perpetuate the very fraud it is allegedly designed to prohibit.” As the court cannily deduced, the Minnesota statute lends itself to use by political adversaries seeking to undermine the message of their opponents. Filing a complaint against one’s opponent can be used as a political tool to undermine the opponent’s message and force the opponent to “’to devote time, resources, and energy defending themselves.’” All of these strategic political goals can be accomplished by a complainant whether or not his or her complaint is meritorious. The filing of the complaint itself becomes a news item and casts doubt on the credibility of the speaker, and the investigation takes up time and money even if the investigation ultimately terminates in one’s favor.In light of this political reality, the court concluded that the mens rea requirement in the statute was not enough to render it constitutional. Most of the statute's chilling effect on political speech occurred because any person can file a complaint under the statute at any time: “[M]ost cynically, many might legitimately fear that no matter what they say, an opponent will utilize [the statute] to simply tie them up in litigation and smear their name or position on a particular matter, even if the speaker never had the intent required to render him liable.”
The court further explained that the statute’s exemption for news media made its unconstitutionality all the more apparent. Exempting the media from liability for false statements while targeting advocacy groups did not advance the state’s interests in policing election fraud. The underinclusiveness of the statute undermined the state’s claims that its speech restrictions were necessary to achieve its stated aims.
Ultimately, the court’s decision to strike down the statute stemmed from both its understanding of the political process and its embrace of the First Amendment ideal of the marketplace of ideas. Counterspeech, not criminalization, is the remedy that the US Supreme Court’s decisions interpreting the First Amendment precribe for false speech during political campaigns. Counterspeech is clearly a less restrictive alternative than criminalization, and “[t]he citizenry, not the government, should be the monitor of falseness in the political arena.”
The court's opinion thus relied on two central tenets (some would call them myths) of First Amendment jurisprudence. As I've previously described these tenets in an article called Nobody's Fools: The Rational Audience as First Amendment Ideal: "[t]he first is that audiences are capable of rationally assessing the truth, quality, and credibility of core speech. The second is that more speech is generally preferable to less." The problem, of course, is that these tenets, or assumptions, may be demonstrably wrong. False speech in political campaigns may bamboozle the electorate, if they're even paying attention. Nonetheless, the court in Arneson reached the right decision based on both Supreme Court precedent and democratic theory. An audience that is incapable of critically analyzing campaign speech is also incapable of participating in political discourse or engaging in democratic self-governance, and to abandon the ideal of the rational audience for political speech is to abandon the ideal of democracy. This is not (yet) something we're prepared to do.
Monday, June 22, 2015
Walker meets Wooley
In last week's Walker v. Sons of Confederate Veterans, SCOTUS held that specialty license plates constitute government speech, meaning the state can exclude or include whatever groups or messages it wishes, regardless of how viewpoint discriminatory it is being. This basically resolves controversies currently pending in several states over pro-choice/anti-choice license plates--the state can do what it wants. It can allow for both messages, exclude both messages (albeit for different reasons than the Second Circuit relied on in upholding New York's blanket exclusion of messages relating to controversial political subjects, such as abortion), or exclude one and include the other. The Fourth Circuit is currently considering a challenge to North Carolina's program, which offers a "Choose Life" plate but rejected a plate in support of reproductive freedom. Walker ends that dispute and requires that the state's program be upheld The Fourth Circuit last year held invalidated North Carolina's program allowing for a "Choose Life" plate but not a corresponding plate in favor of reproductive freedom; a cert petition is pending.
So is there any way for a person in North Carolina to use a license plate to display a message in support of reproductive rights when the state refuses to allow that specialty plate? How about this: Pay for the "Choose Life" plate, then make a conspicuous show of placing tape or something else to cover the anti-choice logo. The First Amendment allows a driver to cover the state-speech motto on the plate, as the state cannot compel a driver to serve as a "'mobile billboard'" for the State's ideological message." Under Walker, "Choose Life" is the state's ideological message for Wooley purposes, which a driver cannot be compelled to display. The obvious way not to display the state's message is to not purchase the "Choose Life" plate, which the state does not compel (unlike New Hampshire's general "Live Free or Die" plate). On the other hand, if the state did compel that as its sole license plate, a person unquestionably could cover the logo.
It follows that First Amendment should also protect a person who combines those options: Pay the extra money for the specialty plate specifically so she can cover the state's message.* Covering a state-sponsored message with which a person disagrees involves a protected message that is different from declining to purchase and display that message in the first instance. Additional meaning flows from the person not just counter-speaking to the state message, but using the state message as the vehicle for the counter-speech. For a stark comparison, an individual is not obligated to purchase or display an American flag, although she may choose to purchase it so she can set it on fire. Each presents a different message that a speaker is entitled to put forward. Given that difference, the state should not be able to successfully argue that the driver lost her right to cover the slogan, a la Wooley, because she willingly paid extra for the plate with that slogan.
[*] There is a separate question of whether anyone would want to do this. My understanding is that in some states, a portion of the money for some specialty plates goes to the cause reflected on the plate. So a supporter of reproductive freedom will not buy the "Choose Life" plate, even to make the statement of covering the logo, if the money is going to anti-choice causes.
Thursday, June 18, 2015
SCOTUS Decides the Confederate Plates Case (5-4)
The US Supreme Court today held that the Texas Department of Motor Vehicles did not violate the First Amendment when it rejected a proposed license plate featuring the confederate battle flag. The majority opinion, authored by Justice Breyer and joined by Justices Thomas, Ginsburg, Sotomayor, and Kagan, reached this conclusion by deploying the relatively newly minted government speech doctrine to allow Texas to pick and choose what messages its drivers can display on their specialty license plates based on whether others might find those messages offensive. Justices Roberts, Scalia, Alito, and Kennedy dissented.
Like many other states, Texas has a specialty license plate program through which it raises funds by allowing a variety of groups to create specialty plates. Justice Breyer's majority opinion notes, for example, that Texas has approved plates "featuring the words 'The Gator Nation,' together with the Florida Gators logo." [As a UF professor, I appreciate the SCOTUS shout-out!] Justice Breyer also notes that Texas has approved plates with slogans offered by private companies, such as "Get it Sold with RE/MAX." Writing for the majority, Justice Breyer nonetheless concludes that these messages are government speech, branded with the "imprimatur" of Texas.
The case began in 2009, when the Sons of Confederate Veterans (SCV) first submitted to Texas a plate with their name, their organizational logo, and the Confederate battle flag. After public comment and an open meeting to consider the plate, the Texas Department of Motor Vehicles Board rejected the plate on the grounds that "many members of the general public find the design offensive." The Board further deemed such comments by the public to be "reasonable." (emphasis mine) [Cf. Snyder v. Phelps!] The SCV sought an injunction to force the Board to approve the plate on the ground that the denial violated the First Amendment. A federal district court entered judgment for the Board, but a panel of the US Court of Appeals for the Fifth Circuit reversed, holding that the Board's viewpoint discrimination against the SCV plate was unconstitutional.
Today, the Supreme Court held that Texas is the speaker when it chooses the contents of specialty license plates. In other words, the contents of the specialty plates are government speech, and Texas is therefore free to engage in viewpoint discrimination in choosing which plates to approve, subject to the constraints of the "democratic electoral process." The majority posited that the "government would not work" were it not free to convey its messages in the way it sees fit: "as a general matter, when the government speaks it is entitled to promote a program, to espouse a policy, or to take a position. In doing so, it represents its citizens and it carries out duties on their behalf."
A reasonable observer could be forgiven for assuming that a Texas plate that favors The Gator Nation represents the views of the driver of the automobile rather than the views of the State of Texas. But the Court concluded that the plate messages are government speech based on the following. First, license plates historically have been used to convey state messages. "Second, Texas license plate designs 'are often closely identified in the public mind with the [State]." [The majority's process of discerning the "public mind' is a little unclear.] Third, Texas controls messages on its license plates by requiring Board approval of every plate design, a process which grants "final approval authority [that] allows Texas to choose how to present itself and its constituency."
The Court further concluded that license plates do not constitute forums for the speech of private individuals (such as the drivers who choose the plates). The Court emphasized that license plates, unlike public parks, are not traditional public forums [but then again neither are teacher mailboxes, as in Perry Education Ass'n]. More controversially, the Court asserted that the license plates are not designated public forums because the policies and practices of the state of Texas manifest its intent to maintain control of them. The opinion placed great weight on the fact that Texas has "final authority" to approve content, and it also emphasized the traditional role of license plates as "primarily . . . a form of government ID [that] bear[s] the State's name." In doing so, the opinion seems to ignore the conversion of the "traditional" license plate system into a revenue-raising scheme for the state.
Finally, the majority rejected the notion that the plates are a non-public forum that can be used by private speakers, reasoning that the plates are predominantly used by Texas for its own "expressive conduct." As the opinion states, "we reach this conclusion based on the historical context, observers' reasonable interpretation of the messages conveyed by Texas specialty plates, and the effective control that the State exerts over the design selection process."
This 5-4 decision highlights a flaw in First Amendment doctrine that I've previously discussed in an article on public forum doctrine and government speech in social media. That flaw is that current doctrine "does not contemplate the possibility that [a forum for speech] might involve both government speech and a public forum." Supreme Court precedent left the majority with a Boolean choice: either the plates were a public forum or they were government speech. If the plates were a public forum, Texas's rejection of any imaginable plates on the grounds of offensiveness would constitute content-based and viewpoint-based discrimination in violation of the First Amendment. The result would be that Texas, and perhaps most states, would eliminate specialty license plate programs even if it meant giving up the extra revenues they bring. [Not that this result would be so terrible.] On the other hand, if the plates were deemed government speech, Texas could maintain the program while blocking the most objectionable types of plates. Reality, however, is more complicated than current free speech doctrine. The reality is that Texas specialty plates contain both government speech and private speech on one small square of metal. This case just points out the absurdity of having to choose inflexible doctrinal categories to get to a desired outcome.
Justice Alito's dissent rightly observed that the case sets a dangerous precedent, allowing the government to regulate any offensive speech on government property simply by retaining final approval authority over that speech. Justice Alito refocused the historical analysis of licenses plates on the point AFTER the development of specialty plate programs, concluding that "history here does not suggest that the messages at issue are government speech." He also examined how the Texas license plate approval process actually worked: Texas accepts all private messages submitted "except those, like the SCV plate, that would offend some who viewed them." The mere fact that Texas has given its "blessing" to the private speech on most plates does not make those plates government speech. Instead, "Texas, in effect, sells [license plate] space to those who wish to use it to express a personal message," and by doing so, creates a limited public forum. Texas' decision to reject the SCV plate, or indeed to reject any plate on grounds of offensiveness, was therefore unconstitutional viewpoint discrimination.
First Amendment Day at SCOTUS
SCOTUS on Thursday decided the final free speech cases of the Term.
In Walker, the Court held that the messages on specialty license plates constitute government speech rather than private speech is a government-created public forum. The Court split 5-4; Breyer wrote for Thomas, Ginsburg, Sotomayor, and Kagan, while Alito dissented joined by the Chief, Scalia, and Kennedy.
When this issue first began bubbling up in the '90s, my quick conclusion (even before Summum, the case at the heart of the dispute between the majority and the dissent) was that specialty plates were government speech. Governments used these plates for their own messages ("Live Free or Die" "Famous Potatoes" "The Lone Star State") and the specialty-plate programs simply expanded the range of message government would adopt and present as its own.* And a viewer can understand that a driver with one of those plates agrees with that message.
[*] By contrast, I believed--and still do--that alpha-numeric codes used in vanity plates constitute individual speech in a limited public forum that should be subjected to closer First Amendment scrutiny.
But Alito's dissenting opinion was quite convincing, particularly in that it was an excellent and very accessible read. I was particularly moved by the two hypotheticals he presented--1) an electronic highway billboard containing some government messages, but on which government opens space for private speakers to rent space for their own messages and 2) a public-university campus bulletin board or listserv which includes some government messages and is open to private messages. Alito's point is that, under the majority's analysis, these speech locations could as easily be called government speech and government "adoption" of certain paid-for private messages.
The second decision is Reed v. Town of Gilbert, holding that a municipal sign ordinance that imposed less-favorable conditions on "directional" signs compared with "ideological" or "political" signs was content-based and did not survive strict scrutiny. Thomas wrote for the Chief, Scalia, Kennedy, Alito, and Sotomayor, with Alito, joined by Kennedy and Sotomayor also adding a concurrence; Kagan, writing for Ginsburg and Breyer, concurred only in the judgment, with Breyer adding his own concurrence-in-the-judgment. Based on some listserv discussions, this could line up as a significant case on the ground.
The cornerstone of Thomas' opinion is a broad construction of what constitutes a content-based (in the sense of subject-matter-based) restrictions subject to strict scrutiny. He identified four categories of content-based regulations: 1) Those that are content-based on their face by defining the regulated speech by its subject-matter; 2) those that define the regulated speech by its function or purpose; 3) those that are facially content-neutral, but that cannot be justified without reference to the content of the regulated speech (that is, the underlying harms only arise because of the content of the speech); and 4) those that are facially content-neutral, but that were adopted by the government because of disagreement with the message conveyed by the regulated speech. For those who view the content-neutrality requirement as an important means of protecting First Amendment interests, there is a lot to like in this. If Thomas is serious about this taxonomy, it could be used to look under the hood of a significant number of seemingly content-neutral regulations that really were enacted to limit certain speech and certain speakers, especially speech and speakers associated with a particular location.** The last two categories also will prevent government from pleading "pure" legislative motive so as to avoid strict scrutiny. [Update: Some email discussions raise the possibility that Thomas's taxonomy eliminates the "secondary effects doctrine" for regulating nude dancing and other sexually explicit speech, one of the clearest examples of a facially content-based regulation treated as content-neutral]
[**] While I hate playing amateur psychologist, one obvious example would be the buffer-zone and other regulations on reproductive-health clinic protests, such as in McCullen and Hill, which were treated as content-neutral, but which would seem to fall into the fourth category.
Kagan, Ginsburg, and Breyer were troubled by this seeming expansion of non-neutrality, perhaps because of concerns for what this might mean for commercial regulations or other innocuous regulations that do not pose meaningful threats to public debate (for example, allowing for permanent "Hidden Driveway" signs but not other permanent signs). Breyer even offered a new, more even balancing test placing less of a thumb on the scale of free speech, asking whether the harm to First Amendment interests is disproportionate in light of the state's regulatory interests (he offered a similarly soft balancing test in his concurrence in the judgment in Alvarez). Kagan insisted that it was unnecessary to determine whether the ordinance was content-based, since it could not even survive intermediate scrutiny as a content-neutral regulation; the ordinance was both overbroad and under-inclusive and the government offered no reasons for the distinctions or limitations it imposed.
Thursday, June 11, 2015
The Chief, the First Amendment, and the assignment power
At CoOp, Ron Collins writes about Chief Justice Roberts' emergence as the Court's leading voice on the First Amendment, a voice that "is already towering over that of others on the Court." Collins emphasizes the number of free speech majority opinions Roberts has authored in his decade on the Court--13, far more than the next two Justices (Scalia and Kennedy) combined, usually (with several notable exceptions) upholding the free speech claim, whether for better or worse.
But as I wrote in a comment to Ron's post, counting majority opinions is confounded somewhat by the fact that, as Chief, Roberts wields the assignment power whenever he is in the majority. And one reason he writes so much more than any other Justice is that he keeps assigning these cases to himself. Obviously, Roberts must hold a generally highly speech-protective vision of the First Amendment (perhaps Collins is correct that it is the most protective on the Court) in order to be in the majority and thus in position to assign the opinion. But Chief Justice Warren also was consistently in the majority in free speech cases, also usually to uphold the constitutional claim. The difference is that Warren assigned many of these cases to Justice Brennan, which enabled Brennan to emerge as the Court's second great First Amendment voice.
Roberts could as easily have assigned some of these cases to, for example, Kennedy--who has joined most of Roberts' free speech opinions and thus shares a similar First Amendment vision--in the same way. That he has not done so could tell us many different things. It could be about Roberts' unique views of the First Amendment and his specific desire to carry the First Amendment mantle. But it also could be about Roberts' unique views of the assignment power.
Update: A reader shares this 2013 Judicature essay by Linda Greenhouse exploring Roberts' self-assignment practices, which notes the prevalence of First Amendment (including religion) cases that Roberts has kept for himself.
Monday, June 01, 2015
What took so long?
The waiting is over, although still no indication of cause: SCOTUS finally decided Elonis v. US, six months to the day after argument. As expected, the Chief wrote the opinion, deciding the case entirely on statutory grounds and declining to reach the First Amendment question. Justice Alito concurs in part and dissents in part, Justice Thomas dissents.
Still working my way through the opinion. I may have more to say later, including perhaps some speculation about why what ended up as a statutory case took so long.
Tuesday, May 26, 2015
Another SCOTUS opinion day (and possibly another opinion week) has passed and still no Elonis v. United States, the true threats case argued on December 1. It is all-but-certain that the Chief has the opinion (he is the only one who has not released a majority opinion from the December sitting), which instinctively leads me to believe that the petitioner is going to win. But what could be taking the Court so long? And does the six-month wait hint at anything?
Conversations with some First Amendment colleagues have me thinking that the opinion is potentially significant to current free speech controversies over "hate speech," such as racist speech on campus or the anti-Islam messages of AFDI, etc. These controversies have shown that incitement and fighting words as categories of unprotected speech have been so substantially narrowed as to not provide a meaningful check against hateful speech (which I obviously do not find problematic, but many people do). A broad conception of "true threats"--for example, if the threatening nature is defined by what a reasonable listener would conclude rather than what the speaker subjectively intended--potentially fills that gap. On that former conception, the hypothetical that some have proferred in which the Oklahoma SAE bus stopped in front of a Black fraternity and sang a line such "you can hang them from a tree" potentially becomes an unprotected true threat.
Speaking of expansive applications of true threats, this Slate piece by David Cohen (Drexel) and attorney Krysten Connon discusses the recent death and legacy of Neil Horsley. Horsley was the founder of the "Nuremberg Files" website, which published personal information about doctors who perform abortions; posted photos of doctors in "WANTED" posters and called for justice against abortion providers akin to the justice meted against the Nazis at Nuremberg; and tracked those who had been wounded (by graying out their names) or killed (by striking through their names). A divided en banc Ninth Circuit affirmed a multi-million dollar judgment in favor of Planned Parenthood, concluding that the web site did constitute a true threat of violence against abortion providers. The court applied a "reasonable speaker" test, which asked whether a reasonable speaker would foresee that those to whom the message was directed would interpret as a serious expression of intent to harm.
Sunday, May 17, 2015
We've come a long way, but in which direction?
It appears that a political science professor at Duke University is under the gun, and perhaps has been placed on leave, over an online response to a New York Times editorial about racism and Baltimore. It is not entirely clear what has happened-the professor has told some media outlets that he was placed on leave; Duke declined to comment on his status, while condemning the remarks as "noxious, offensive, and hav[ing] no place in civil discourse" and calling on the Duke "community to speak out when they feel that those ideals [of inclusiveness] are challenged or undermined, as they were in this case."
Because Duke is a private institution, the First Amendment is not in play here. Nevertheless, I hope that principles of free expression, academic freedom, and tenure prevail and keep Duke from sanctioning Hough. In fact, I hope Duke would borrow a page from my alma mater.
For years, Arthur Butz has been an electrical engineering professor at Northwestern, despite having authored a 1976 book denying the Holocaust. In 2006, Butz supported Iranian President Mahmoud Ahmadinejad's Holocaust denial, prompting sixty engineering professors to call for Butz's censure. The response, from then-President Henry Bienen, is reprinted in full after the jump. Importantly, it includes lines such as "he is entitled to express his personal views" and "we cannot take action based on the content of what Butz says regarding the Holocaust - however odious it may be - without undermining the vital principle of intellectual freedom that all academic institutions serve to protect."
It will be interesting to see whether Duke understands intellectual and academic freedom in similar terms.
Update: This Washington Post story, echoing what several people said in comments, states that Hough himself has disavowed reports (such as the Slate piece) that he was placed on leave following the comments, telling an area newspaper that he already had been on academic leave this year and that he is due to stop teaching in 2016. So, I guess, good for Duke.
Northwestern University Associate Professor Arthur Butz recently issued a statement commending Iranian President Ahmadinejad's assertion that the Holocaust never happened. Butz is a Holocaust denier who has made similar assertions previously. His latest statement, like his earlier writings and pronouncements, is a contemptible insult to all decent and feeling people. While I hope everyone understands that Butz's opinions are his own and in no way represent the views of the University or me personally, his reprehensible opinions on this issue are an embarrassment to Northwestern.
There is no question that the Holocaust is a well-documented historical fact. The University has a professorship in Holocaust Studies endowed by the Holocaust Educational Foundation. Northwestern offers courses in Holocaust Studies and organizes conferences of academic scholars who teach in areas relating to the Holocaust. In addition, Northwestern hosts a summer Institute for Holocaust and Jewish Civilization. And most recently, a fellowship in the political science department has been established in my name by the Holocaust Educational Foundation. In short, Northwestern University has contributed significantly to the scholarly research of the Holocaust and remains committed to doing so.
Butz is a tenured associate professor in electrical engineering. Like all faculty members, he is entitled to express his personal views, including on his personal web pages, as long as he does not represent such opinions as the views of the University. Butz has made clear that his opinions are his own and at no time has he discussed those views in class or made them part of his class curriculum. Therefore, we cannot take action based on the content of what Butz says regarding the Holocaust - however odious it may be - without undermining the vital principle of intellectual freedom that all academic institutions serve to protect.
Wednesday, May 13, 2015
Muslim cartoons and Nazis in Skokie
Here is a nice post from Ron Collins (CoOp) on several different angles and issues in the controversy over Pam Geller and the cartoon contest. Interestingly, Collins compares this controversy to the Nazis marching in Skokie in 1977, which similarly divided the left on the appropriate protection for hateful, deliberately provocative speech that might provoke violence. Collins points out that the National ACLU has been unequivocal as to Geller, insisting that "it’s not even a tough question" that what she is doing is protected by the First Amendment. The ACLU famously lost money and members over its decision to represent the Nazis back in the day.
Collins also links to this piece in Reason comparing The New York Times' op-ed page position on Skokie with its position on the cartoons. It includes excerpts from last's week's editorial and from January 1, 1978's Nazis, Skokie and the A.C.L.U. The comparison reveals the shifting "yes, but" that Paul identified. Thirty-seven years ago, The Times never felt the need to suggest that Frank Collin's stunt was "not really about free speech," but instead was "an exercise in bigotry and hatred posing as a blow for freedom." Rather, that piece placed the burden on the People of Skokie to "demonstrate their respect for the law" by not engaging in violence.
Again, none of this affects the legal protection of anyone's speech. But there is a rhetorical and narrative difference that does make a difference.
Saturday, May 09, 2015
The First Amendment's Burden of Persuasion
In his post on that NYT editorial about Pam Geller and the cartoon contest. Paul says the following:
But their typical "yes, but" editorials on the subject would generally have ended with the civil libertarian point: yes, the speech is contemptible, but, followed by cut-and-paste quotes by Holmes and Brandeis. This is a "yes, but" editorial with the opposite orientation: yes, the speech is protected, but....
Of course, it is not only The Times that has long utilized that first "yes, but" structure; courts do it, as well. Consider Chief Justice Roberts in Snyder v. Phelps:
Westboro believes that America is morally flawed; many Americans might feel the same about Westboro. Westboro's funeral picketing is certainly hurtful and its contribution to public discourse may be negligible. But . . .
Or Roberts' former boss, Chief Justice Rehnquist, in Hustler v. Falwell:
There is no doubt that the caricature of respondent and his mother published in Hustler is at best a distant cousin of the political cartoons described above, and a rather poor relation at that. If it were possible by laying down a principled standard to separate the one from the other, public discourse would probably suffer little or no harm. But we doubt that there is any such standard . ..
Several years ago, Erica Goldberg wrote at CoOp that she regretted the continued need for that "yes but" structure: "The day that I don’t have to disassociate myself from the speech that I am defending is the day that I can stop worrying so much about the state of free speech issues on campus." In fact, really, it always has been thus.
This is why I believe Paul is onto something that reflects a change in how we think and talk about the freedom of speech. In a comment to Paul's post, I described this as shifting the burden of persuasion. The first orientation acknowledges the speaker and the speech as contemptible, but celebrates First Amendment principle; the second orientation acknowledges the First Amendment, but focuses on condemning the speech and the speaker. Put another way: The first version focuses on celebrating First Amendment principle while accepting the speaker/speech as the cost of that; the second version focuses on condemning the speaker/speech while accepting the First Amendment as the cost, but one that demands the forceful condemnation as more necessary and more essential. Put a third way: The first structure seems to say "We don't like these speakers, but we have the First Amendment;" the second structure says "We're stuck with the First Amendment, but we really hate this speaker, he should not have spoken, and he may have even brought any injury on himself."
Compare that with how Roberts closed in Snyder: "As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate. That choice requires that we shield Westboro from tort liability for its picketing in this case." That is different in tone, if not substance, from what The Times and others are saying about Charlie Hebdo, Pam Geller, the cartoons, etc. Now, I am not suggesting that it is not ok to criticize offensive speech and speakers even while defending their right to speak; the First Amendment does not immunize Pam Geller from criticism.
The point, I think, is a shift in which of those things we highlight. Perhaps this shifted burden will not make a difference doctrinally. But how we perceive the First Amendment affects how we talk about it, which perhaps affects how free speech controversies play out. If the focus is on condemnation, does the constitutional principle lose some of its luster? If the focus is on condemnation, will speakers be less willing to speak or less willing to pursue efforts to protect these principles? This, in turn, may affect how the courts eventually come to think and talk about the First Amendment.
Thursday, May 07, 2015
New York Times joins ACLU in giving up on free speech
I discussed the ACLU's strange ambivalence here and here. And that is the only way to explain this strange and appalling op-ed from The Times editorial board. (H/T: Thomas Baker). Apparently, the board can recognize the difference between "hate speech" and "free speech" (it seems to have something to do with motivation). And thus the government and/or powerful institutions--such as The New York Times--can be trusted to recognize and apply that distinction between "an exercise in bigotry and hatred" and "free speech."
I am at too great a loss to pick apart the piece's reasoning and its seeming surrender of most of the underpinnings of the First Amendment doctrine that allows The Times to be The Times. I will make three points. First, the difference between Charlie Hebdo and Pamela Geller (the head of AFDI and who organized the recent Texas Draw Muhammad event) seems to be that Hebdo satirize everyone, while Geller only goes after Muslims. I guess this means that "viewpoint neutrality" applies not to government regulation, but to speakers. Second, does the board realize that, if the term existed 55 years ago, Birmingham City Commissioner L.B. Sullivan almost certainly would have described The Times' criticism of him and southern officials as "hate speech." Three, under this "bad motive" test the op-ed suggests, Hustler v. Falwell comes out the other way, carrying with it much political cartooning and satire.
Wednesday, May 06, 2015
A vigorous defense of free speech
On Tuesday, the writer's free speech organization PEN held its annual Literary Gala and Free Expression Awards. One award recipient was the surviving staff of Charlie Hebdo, a decision that triggered some controversy, as Steve Lubet has discussed. During his opening remarks, PEN President Andrew Solomon eloquently defended Hebdo, the decision to give it the award, and general principles of free expression. Worth a read (and a viewing--his remarks begin around 3:00 on the video above).
Tuesday, May 05, 2015
The next Erie/Hanna issue for SCOTUS?
The applicability of state anti-SLAPP provisions (specifically those that allow for a special motion to dismiss, in which a plaintiff must show a likelihood of success on the merits) in federal court. Last week, the D.C. Circuit held that such measures do not apply in federal court. The court held that two Federal Rules--FRCP 12 and 56--form an "integrated program" for granting pre-trial judgment onto which state law cannot add.
This creates a circuit split--at least three circuits (1st, 5th, and 9th) hold that state law does apply in federal court under an "unguided Erie analysis," while four judges from the Ninth Circuit (including Kozinski) reached the same conclusion as the D.C. Circuit in dissenting from denial of rehearing en banc.