First Amendment News

Alan Morrison ( First Amendment News feature image)

Alan Morrison files cert. petition in lawyer suspension case — FAN 335

Alan Morrison: "Lawyers will surely take note, not just of the suspension order, but the refusal of the New Mexico Supreme Court to come to grips with the First Amendment issues and not even write an opinion that defends its order."

April 13, 2022

Professor Alan Morrison has argued 20 cases in the Supreme Court. Those cases include Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio (1984), INS v. Chada (1981), and Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. (1975). He recently filed a cert. petition in Marshall v. Supreme Court of the State of New Mexico. The Supreme Court of Mexico suspended the license of Victor Marshall after it concluded that he “violated the judicial Code of Conduct by filing a frivolous charge, defaming a judge, and engaging in conduct detrimental to the administration of justice.”

News account 

Over his 47-year career as a New Mexico attorney, former state legislator Victor Marshall has called out a state attorney general for alleged conflict of interest, filed a whistleblower lawsuit aimed at exposing state investment schemes and advocated for legislative ethics and campaign reform.

But his attempt to brand a respected pro tem judge as biased and unethical in presiding over a major water rights case may lead to the suspension of Marshall’s legal practice indefinitely.

Issues raised

The two issues raised in the case are:

(1) Does the First Amendment permit a state to suspend a lawyer from practice indefinitely because it found statements in a motion, in which the lawyer sought to recuse a judge in a pending case, were frivolous and impugned the judge’s integrity, when there was no showing that the statements were knowingly false or made in bad faith, or that any person, including the judge, was injured by those statements?

(2) Does the First Amendment permit a state that has suspended a lawyer from practice to forbid that lawyer from assisting his former clients in obtaining replacement counsel in complex lawsuits, but instead, with no allegations of harm to clients, limit him to informing his clients of the state’s lawyer referral service?

Reasons for granting review

In his brief, Professor Morrison argues that the Court should grant review for the following reasons:

This case involves two violations of the First Amendment, which are compounded by the refusal of respondent Supreme Court of New Mexico to explain the basis for imposing an indefinite suspension of petitioner’s license to practice law, how its suspension is consistent with the First Amendment, or what basis that Court has for denying petitioner’s clients petitioner’s help in securing new counsel in representing them in complex water rights litigation or how that gag order is consistent with the First Amendment.

Upcoming First Amendment Watch event: Rushdie, Jaffer, Siems & Solomon

(L) Jameel Jaffer, (C) Salman Rushdie, (R) Larry Siems (First Amendment Watch)

(L) Jameel Jaffer, (C) Salman Rushdie, (R) Larry Siems (First Amendment Watch)

Join us on Tuesday, April 19th at 5 p.m. EST for a lively and provocative discussion about lies and disinformation—their effect on a representative democracy and the avenues available to combat them consistent with America’s free speech principles.

Our distinguished panel of writers and First Amendment scholars will be introduced by Professor Stephen Solomon, Editor of First Amendment Watch and Director of the Arthur L. Carter Journalism Institute. This in-person event will be live-streamed. Per current NYU Covid guidelines, the audience will be restricted to the NYU community.

Register here (in-person / free)

Smolla files amicus brief in SEC case

Dean Rodney Smolla will soon file an amicus brief in Romeril v. Securities and Exchange Commission. The free speech issue is whether it violates the First Amendment for the Securities and Exchange Commission to impose a requirement that any party with whom it settles must agree to a lifelong prior restraint barring any statement, however truthful and however expressed. (Smolla also filed a brief when the case was in the Second Circuit.)

Dean Rodney Smolla (Delaware Law School)Dean Rodney Smolla (Delaware Law School)

In his brief, Dean Smolla offered the following main arguments:

Review Should Be Granted Because the SEC Gag Rule Raises Important First Amendment Issues That the Court Needs To Address

  1. The SEC Gag Rule is a presumptively invalid prior restraint
  2. The SEC Gag Rule is a presumptively unconstitutional exercise in content and viewpoint discrimination
  3. The SEC Gag Rule is an unconstitutional condition
  4. The SEC Gag Rule is paternalistic and violates the public’s First Amendment rights to receive information

In urging the Justices to grant review, Dean Smolla argues that the Court needs “to address First Amendment issues that have enormous practical importance to the operation of the American legal system — issues that long have vexed and confused lower courts — and for which this Court’s guidance is critically needed.” He also maintains that:

[t]his case presents the Court with an important and timely opportunity to decide whether the SEC Gag Rule, which the SEC incorporates into every consent order and is judicially enforceable through the contempt power, is indeed a presumptively invalid prior restraint. “Any prior restraint on expression comes to this Court with a ‘heavy presumption’ against its constitutional validity.”  Organization for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971).

Review is needed to dispel the notion that prior restraints issued incident to allegations of civil or criminal misconduct are somehow invisible to the First Amendment.  Indeed, particularly in the criminal law context, prior restraints operate as “the most serious and the least tolerable infringement on First Amendment rights.” Nebraska Press Association v. Stuart, 427 U.S. 539, 559 (1976).

Princeton refuses to remove reference to professor’s controversial comment from university webpage

Princeton logo
A professor at Princeton University has defended his right to call a Black student group a “small local terrorist organization” since he did so publicly in 2020. Now the professor’s supporters are asking the university to stop denouncing him, characterizing the lasting criticism as “ongoing retaliation.”

The university has refused to grant this request. And some see the request itself as hypocritical.

“It’s astonishing to me that a tenured professor who is not being punished in any way can receive an outpouring of support from numerous national groups demanding the intervention of top officials in order to banish mere criticism of a professor,” John Wilson, an independent scholar of free expression, wrote in a recent essay for the American Association of University Professors’ “Academe” blog. “And it’s remarkable how often ‘free speech’ can be invoked to demand censorship.”

Federal judge strikes down Texas drone law

This from The Free Speech Center:

A Texas law prohibiting the use of drones to film or photograph private property has been struck down on First Amendment grounds.

According to the legal website JD Supra, U.S. District Judge Robert Pitman ruled that Chapter 423 of the Texas Government Code violated the freedoms of speech and press guaranteed by the First Amendment. The law, which provided no exception for news reporting, had been challenged by two press associations and several journalists.

Pitman found the law to be “a content-based restriction, which is impermissible under the First Amendment,” JD Supra reported.

Regional Transit Authority pays synagogue $40K in religious ads suit 

The Hillsborough Area Regional Transit Authority, also known as HART, has agreed to pay a Tampa synagogue $40,000 in damages stemming from a 2021 free speech lawsuit.

Federal Judge Virginia M. Hernandez Covington found HART’s policy prohibiting ads with religious messages was a violation of First Amendment free speech protections.

In October 2020, HART rejected an ad from Young Israel Tampa, a local Orthodox Jewish synagogue. The temple was advertising its annual “Chanukah on Ice.” The event promised ice skating around a “Grand Ice Menorah” and “ice skating around the flaming Menorah.”

“Thank you for writing, unfortunately, we cannot assist,” Marketing Manager Laurie Gage wrote to the synagogue in early November, a few days after the initial submission. “HART does not allow religious affiliation advertising, as well as banning adult, alcohol, tobacco, and political ads.”

Young Israel appealed and in December 2020, HART representatives wrote back with suggested changes. They wanted the synagogue to remove any images or references to menorahs.

New scholarly article: Skinner-Thompson on ‘gender expression’ and the First Amendment

  • Scott Skinner-Thompson, “Identity by Committee,” Harvard Civil Rights-Civil Liberties Law Review (2022)

Even in school districts with relatively permissive approaches to defining and embodying gender, the identities of transgender and gender-variant students are often governed by complex regulatory protocols. Ensuring that a student is able to live their gender at school can involve input from a host of purported stakeholders including medical providers, mental health professionals, school administrators, the student’s parents, and even the broader community. In essence, trans and gender-variant students’ identities are governed by committee, which reduces students’ control over their lives, inhibits self-determination, constricts the scope of permissible gender identities, subjects them to incredible degrees of state surveillance, and amplifies the risk that sensitive information about the students will be disclosed more broadly.

Prof. Scott Skinner-Thompson (Colorado Law)Prof. Scott Skinner-Thompson (Colorado Law)

Some of these barriers may have roots in the ways gender has been discursively framed in order to access harm-reducing legal benefits and carve out space for trans identity and survival. For example, persistent linking of transgender identity with medicalized “gender dysphoria,” potentially to harness medical care, may lend credence to a regulatory approach where medical providers and administrators, not the student, have predominant control over the child’s identity. Similarly, attempts to essentialize gender identity as an innate mental state in order to assuage concerns about mutability legitimizes the role of mental health professionals in controlling the student’s identity at school.

This Article intervenes in this regulatory landscape in three ways. First, it examines the prevailing discursive and sociolegal ways of framing gender and gender identity through an analysis of transgender history and activism, medical discourse regarding gender and gender identity, mental health discourse, and law reform efforts and advocacy.

Second, it unpacks the many bureaucratic barriers imposed on transgender and gender-variant students in schools, tentatively linking those barriers to the discourses of gender identity. Through a detailed analysis of the education policies governing gender identity in each state and each state’s largest school district, the Article documents the substantive requirements for living consistently with one’s gender identity in school (for example, providing medical documentation v. self-identification) and the different stakeholders enshrined in procedurally assessing students’ gender.

Finally, the Article explores whether given extant doctrine endorsing comparatively expansive First Amendment speech rights—even for students—renewed discursive emphasis on “gender expression” could provide students with greater freedom relative to purported “committee” stakeholders. At the very least, an emphasis on the dialectical relationship between social context and gender expression could help schools, courts, and society better understand the non-essentialist (e.g., non-medical) but exploratory and performative components of our gender identities, building societal appreciation for the ways in which our identities—while our own and while material—are nevertheless dynamic; a simultaneously challenging but beautiful concept.

New book on free speech in K-12 schools 

At the schoolhouse gate cover
The objective of this edited volume is to shed light upon K-12 perspectives of various school stakeholders in the current unique context of increasing political polarization and heightened teacher and student activism. It is grounded in academic freedom case law and the majority of [sic] opinion of the Supreme Court in the Tinker v. Des Moines Independent Community School District (1969) that held that certain forms of expression are protected by the First Amendment. Justice Fortas wrote in the majority opinion that “it can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

This volume is timely and instructive, as protections afforded by the First Amendment are a topic of enduring concern, with such freedoms requiring vigilant advocacy and protection from each generation. Paulo Freire stated, “Citizenship is not obtained by chance: It is a construction that, never finished, demands we fight for it” (1998, p. 90). There is confusion and much debate in and outside of schools about how and when these and other rights described in the First Amendment may or may not be limited, and the time is now to clarify the place of such rights in public education. At the Schoolhouse Gate is divided into three sections: Foundations, Case Studies of Rights in Schools, and Choices to Act.

Prof. Nancy C. Patterson (Bowling Green State)Prof. Nancy C. Patterson (Bowling Green State)

The “Foundations” section presents the case law pertaining to the rights of both teachers and students, setting the tone for what presently is permissible and chronicling the ongoing struggle with defining rights and responsibilities in schools.

In “Case Studies of Rights in Schools,” various authors examine teacher and student interactions with rights and responsibilities in schools, including the interest of students in participating with their teachers in the democratic experiment of schooling, the promise of student-led conferences, a new teacher’s success with democratizing her classroom, and student views of news and technology.

“Choices to Act” includes a portrait of teacher activism during the Oklahoma Walkout, a general counsel’s advice to teachers for availing themselves of their rights, a story of a civic education curriculum generating student agency, and vignettes of twio public high school students who took action in their schools and communities.

Related 

Book review of ‘Read Dangerously’

Moments of Grace cover
Nafisi is a reluctant memoirist who struggles with her own inner censor, and the shame and guilt that linger, but this hasn’t stopped her from trying to find some peace of mind. In her new book, Reading Dangerously: The Subversive Power of Literature in Troubled Times, she seems to be attempting to find harmony with her dead parents, who still weigh heavily upon her. She no longer lives in Iran, which she left long ago, now living comfortably in an apartment overlooking the Potomac in Washington, DC, where she spends her days writing and reading and occasionally speaking to groups about her strange journey. One senses that Nafisi is an eternal exile, even though she has lived in the United States with her husband and two children since 1997. The new book is structured in the form of letters to her dead father. This setup allows her to speak to him about her regrets: things she wishes she had the chance to do before he passed. But the letter-writing format also permits her to bounce back to the present, sharing with him the things that preoccupy her today.

So to Speak podcast: Former BBC bureau chief Konstantin Eggert & what you need to know about censorship in Russia

So to Speak logo
Konstantin Eggert, a native Muscovite, has reported on Russia since the fall of the Soviet Union. He started his reporting career in Moscow in 1990. From 1998-2009, he was senior correspondent, then editor-in-chief, of the BBC Russian Service Moscow bureau. Later he worked for ExxonMobil Russia and Russian media outlets, Kommersant and TV Rain.

Now, living in Lithuania, Eggert is a vocal critic of the Putin regime and has more than a few thoughts on censorship in Russia: specifically, how it compares to Soviet censorship, the decline of independent media in the country, Russian history, and the war in Ukraine.

Eggert currently works for a German broadcaster, Deutsche Welle.

Link here

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2021-2022 SCOTUS term: Free expression & related cases

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This article is part of First Amendment News, an editorially independent publication edited by Professor Ronald K. L. Collins and hosted by FIRE as part of our mission to educate the public about First Amendment issues. Opinions expressed are those of the article's author(s) and may not reflect the opinions of FIRE or of Professor Collins.