First Amendment News

FAN 232: Hopwoods File Brief in Fourth Circuit in Government Employee Speech Case

November 13, 2019

Keep your eyes on this incredible couple: Shon Hopwood (bold and bright) and Ann Marie Hopwood (reserved and discerning). You can expect impressive appellate and large-scale reform work to come from them in the years ahead . . .  and expect writings on the scholarly side as well. Seriously!

In their first appellate filing together, the Hopwoods recently submitted a merit brief in the Fourth Circuit on behalf of the appellee in Butler v. Pennington (4th Cir., no: 19-1457). Plaintiff-appellee Beattie Butler is a former assistant public defender, whose employment was terminated after she filed a grievance concerning prosecutorial misconduct.

Facts as Recounted in Appellee’s Brief

Prof. Shon Hopwood

Former Assistant Public Defender, Plaintiff Beattie Butler, witnessed serious misconduct on the part of local prosecutors. These instances of prosecutorial misconduct were so egregious that they led to extraordinary judicial remedies in several cases, such as the suppression of evidence, a mistrial, and a directed verdict. As a member of the state bar, Butler felt ethically compelled to report the misconduct. So he prepared a grievance that he planned to file with the South Carolina Judicial Office of Disciplinary Counsel (“ODC”). But Defendant D. Ashley Pennington, who was the Chief Public Defender and Butler’s boss, forbade Butler from filing the grievance. When Pennington later discovered that Butler had posted about some of the prosecutorial misconduct on a criminal defense lawyers’ listserv (a sort of online discussion board), he further restrained Butler’s speech, commanding Butler that he could not speak about any prosecutorial misconduct with the media or on “the list serve [sic], informal chats with others in and out of the office and in seminars.”

To avoid inevitable retaliation for reporting the misconduct, Butler retained Desa Ballard, a lawyer specializing in legal ethics, to advise him in crafting a grievance. Ballard independently investigated Butler’s allegations, found them to be troubling, and then filed the complaint with the ODC on her own behalf. The local media covered the filing of Ballard’s grievance and wrote stories about her claims of prosecutorial misconduct.

Butler’s fears of retaliation were justified. After learning that Ballard had filed the grievance, Pennington terminated Butler’s employment. In the termination letter, Pennington stated that he fired Butler because Ballard had filed a grievance and that, through the grievance, Butler spoke to the media without Pennington’s prior approval, both in violation of Pennington’s prior orders. The termination letter also referenced Butler’s speech about prosecutorial misconduct to colleagues on a criminal defense lawyers’ listserv.

Ann Marie Hopwood

Appellee’s First Amendment Arguments

C. The District Court did not err in finding that Butler presented sufficient evidence of First Amendment prior restraint and retaliation violations

1. There was sufficient proof that Butler’s speech was about serious law enforcement misconduct and thus was of great public concern.

2. There was sufficient proof that Butler’s speech had no disruptive impact on the PD’s Office.

3. Butler’s speech about serious law enforcement misconduct outweighed any alleged disruption.

D. The District Court did not err in rejecting Pennington’s argument that Butler’s allegation of termination due to his disability negates his allegation that he was terminated due to speech.

II. Pennington Is Not Entitled to Qualified Immunity in a Case Where the Speech Involved Serious Law Enforcement Misconduct and Little to No Disruption.

A. This Court’s cases put Pennington on notice that prior restraints require a greater level of disruption before the speech is unprotected.

B. This Court’s cases put Pennington on notice that speech about serious law enforcement misconduct requires a greater level of disruption before Pennington could terminate Butler for his speech.

C. That this case arises in the context of a public defender’s office rather than a police department supports the view that Pennington was on notice that the speech here was protected.

Read the U.S. District Court opinion.

Full disclosure: Shon Hopwood is a former student of mine.

Clement Files Yet Another Cert. Petition in First Amendment Case This Term 

Paul D. Clement continues to make his First Amendment presence known to those who monitor the Supreme Court’s cert. pool. His latest filing came recently in Facebook, Inc. v. DuguidThe two issues in the case are:

1. Whether the TCPA’s [Telephone Consumer Protection Act of 1991] prohibition on calls made using an ATDS [automatic telephone dialing system] is an unconstitutional restriction of speech, and if so whether the proper remedy is to broaden the prohibition to abridge more speech.

2. Whether the definition of ATDS in the TCPA encompasses any device that can “store” and “automatically dial” telephone numbers, even if the device does not “us[e] a random or sequential number generator.”

Paul Clement

Facts of the Case as Recounted by Ninth Circuit Judge M. Margaret McKeown:

Almost thirty years ago, in the age of fax machines and dial-up internet, Congress took aim at unsolicited robocalls by enacting the Telephone Consumer Protection Act of 1991 (“TCPA”), 47 U.S.C. § 227. In the decades since, the TCPA has weathered the digital revolution with few amendments. With important exceptions, the TCPA forbids calls placed using an automated telephone dialing system (“ATDS”), commonly referred to as an autodialer.

Noah Duguid claims that Facebook used an ATDS to alert users, as a security precaution, when their account was accessed from an unrecognized device or browser. For unknown reasons, Duguid received the messages despite not being a Facebook customer or user and never consenting to such alerts. His repeated attempts to terminate the alerts were unsuccessful.

Facebook challenges the adequacy of Duguid’s TCPA allegations and, alternatively, claims that the statute violates the First Amendment. We conclude that Duguid’s allegations are sufficient to withstand Facebook’s motion to dismiss under Federal Rule of Civil Procedure 12(b)(6).

As to the constitutional question, we join the Fourth Circuit and hold that a 2015 amendment to the TCPA, which excepts calls “made solely to collect a debt owed to or guaranteed by the United States,” is content-based and incompatible with the First Amendment. Am. Ass’n of Political Consultants, Inc. v. FCC, 923 F.3d 159 (4th Cir. 2019). But rather than toss out the entire TCPA—a longstanding and otherwise constitutional guardian of consumer privacy—we sever the newly appended “debt-collection exception” as an unconstitutional restriction on speech.

Duguid v. Facebook (9th Cir., 2019)

The other First Amendment free expression cases Clement has filed this term in the high court are:

  1. Charter Communications Inc. v. National Association of African American-Owned Media (cable operator and First Amendment right to include racial considerations in making editorial determinations)
  2. Archdiocese of Washington v. Washington Metropolitan Area Transit Authority (religious advertisements)
  3. Thompson v. Hebdon (campaign finance)

Compelled Subsidy (Seattle’s “Democracy Voucher”) Challenged in Supreme Court

The case is Elster v. City of Seattle.  The issues raised in the cert. petition to the Supreme Court are:

1. Whether a levy that forces property owners to fund other individuals’ campaign donations implicates the First Amendment’s compelled-subsidy doctrine.

2. Whether a compelled subsidy of speech should be examined under rational basis review, as the decision below concluded, or whether a higher standard of review is appropriate.

Counsel of Record: Ethan W. Blevins.

Read the Washington Supreme Court’s opinion.

Divided Eighth Circuit Strikes Down Missouri’s Lobbying Requirements

Recently a badly divided Court of Appeals for the Eighth Circuit (sitting en banc, vote: 6-5) handed down its ruling in Calzone v. Summers (2019, no. 17-2654). The following statement of facts is from the majority opinion by Circuit Judge David Stras:

Judge David Stras

Calzone often acts through a nonprofit corporation called Missouri First, Inc. The parties agree that this organization is effectively his alter ego: he is its incorporator, sole officer, president, director, and registered agent. According to Missouri First’s charter, it seeks to “educat[e] and mobiliz[e] the public” about matters of civic importance and support various candidates and initiatives. Like Calzone himself, Missouri First spends and receives no money in pursuit of these goals.

According to Missouri, Calzone’s ties to Missouri First make him a “legislative lobbyist.” Mo. Rev. Stat. § 105.470(5). As relevant here, this label applies to “any natural person who acts for the purpose of attempting to influence” legislative activities and has been “designated to act as a lobbyist by any . . . nonprofit corporation, association[,] or other entity.” Id. § 105.470(5)(c). All lobbyists must navigate a maze of legal requirements. . . .

Noncompliance carries severe penalties. In addition to hefty fines, violators face prison time—up to four years for repeat offenders. See id. §§ 105.473, 105.478, 558.002.1, 558.011.1(5), (7). Anyone can initiate an investigation simply by filing a complaint with the Missouri Ethics Commission. See id. §§ 105.472, 105.966. Calzone has faced two official complaints, including one that resulted in a formal inquiry.Convinced that these restrictions violate his First Amendment free speech and petition rights, Calzone sought a permanent injunction to prevent members of the Missouri Ethics Commission from “enforcing [the law] against [him].” In support of his request for individual injunctive relief, Calzone’s focus has been on why the restrictions are unconstitutional in light of his particular method of advocacy. He has stressed, for example, that he “does not accept money for his activism, nor does he spend money on legislators and legislative staff when he communicates with them about his public policy beliefs.” Suggestions in Support of Plaintiff’s Motion for a Temporary Restraining Order and Preliminary Injunctive Relief at 11.

Judge Rules That the First Amendment Does Not Shield Newspapermen from Prosecution for Former Ownership of

Writing in Front Page Confidential, Stephen Lemons reported that:

The trial judge in the Lacey and Larkin case has ruled that the First Amendment does not shield the veteran newspapermen from prosecution for their former ownership of”

In a 22-page order filed in federal court in Phoenix on October 24, U.S. District Court Judge Susan Brnovich denied a defense motion to dismiss the 100-count indictment in the Lacey and Larkin case. The judge found that, given the government’s charges, the First Amendment’s guarantee of freedom of speech and freedom of the press do not apply to the ex-owners of the erstwhile online listings Goliath, earlier this year by attorneys with the law firm of Davis Wright Tremaine (DWT), the motion to dismiss argues that the millions of adult ads posted on Backpage before it was seized by the FBI in April 2018 were presumptively protected by the First Amendment.

The DWT motion claims the government is making impermissible assumptions of illegality based on vague language in those ads. Also, prosecutors are pursuing a “novel theory of vicarious liability,” in an attempt to hold the site’s former owners, veteran newspapermen Michael Lacey and Jim Larkin, and four co-defendants associated with the site, criminally responsible for content posted by third-party users.

However, Brnovich rejected the DWT motion in toto, siding with the government as prosecutors and defense attorneys continue to engage in legal skirmishes leading up to a trial currently scheduled to begin May 5, 2020.

David Boies Sues Alan Dershowitz for Defamation

Over at First Amendment Watch they are reporting that:

On November 7th, famed attorney David Boies filed a defamation suit against Alan Dershowitz, another high-profile lawyer, in New York State Supreme Court.

According to the complaint, Dershowitz, who has been accused by two women of sexually abusing them when they were underage, has publicly and falsely disparaged Boies in the media on nine separate occasions.  “In an effort to distract attention from his own misconduct, Defendant has engaged in a campaign to vilify each of the lawyers who have represented his victims, one of which is Plaintiff,” reads the complaint.

Boies represented Virginia Guiffre (whose maiden name is Roberts) who alleged in a 2014 suit that Jeffrey Epstein “trafficked” her to Dershowitz for sex. Dershowitz, who denies the allegations, said in a November 28, 2018 article in the Miami Herald, “‘The story was 100 percent categorically made up,’ he said, adding that Roberts and her attorneys fabricated the assertion in order to get money from other powerful, wealthy people she alleges she had sex with.”

In a December 18, 2018 piece in the New York Daily News, Dershowitz accused Boies of causing another woman, Sarah Ransome, to falsely accuse Dershowitz of sexual assault. “The villain here is David Boies, who is exploiting a crazy woman in order to get revenge against me,” Dershowitz told the newspaper.

And on December 19, 2018 in a letter to the editor of the Daily News, Dershowitz wrote that “Attorney David Boies threatened that unless I withdrew a bar complaint I had filed against him for falsely accusing me of sexual misconduct, he would find another woman to accuse me of similar misconduct.” Adding that Boies “has now found an unbalanced woman” who “only began to accuse me after meeting Boies.”

Boies, who says in the complaint that “defamation lawsuits are ordinarily an undesirable way to respond to public criticism,” claims that he has no reasonable alternative, and Dershowitz “essentially challenged” him to sue for defamation.

Complaint here

Other Articles About Recent Defamation Cases 

Abrams at Duke Law: Tradeoffs Americans Make to Protect Freedom of Expression

This from Duke Law News (video link here):

Floyd Abrams, one of the nation’s preeminent advocates of free speech, told Duke Law students on Oct. 22 that his storied career developed through the aligning of interest and opportunity. He urged them to defend the First Amendment rights of those with whom they disagree.

Abrams discussed the state of free speech on campuses, differences between the kinds of speech tolerated in the United States and in other democracies, and other trends concerning free expression in his lunchtime conversation with First Amendment Clinic Supervising Attorney Nicole Ligon ’16. Prior to joining the Duke Law faculty, Ligon worked with Abrams in the litigation practice group at Cahill Gordon & Reindel in New York City, where he has practiced for 56 years and now is senior counsel. . . .

Abrams recalled starting his career at a time of “great antipathy toward the press,” when reporters were being subpoenaed to reveal their sources.

“Journalists were telling me they couldn’t do their job if they couldn’t, at least in certain circumstances, promise confidentiality and mean it,” he said.

“By a process of being interested in the subject and the fortuity of being around at a time when First Amendment law started really developing in the late 1960s and early 1970s, that’s what I came to do and be associated with. It was my good fortune that I was around at the right time.” .  . .

“The First Amendment is nothing unless it applies to everybody — it can’t be only applicable to or usable by people with one set of political views or political engagement,” Abrams said. “Regardless of its political and often even social impact, it has to be applied with equal vigor.”

Abrams noted that the United States tolerates a far broader range of speech than Canada and most countries in Western Europe. He cited as an example Snyder v. Phelps, the 2011 case in which the Supreme Court ruled 8-1 that even offensive and outrageous speech by members of the Westboro Baptist Church outside a funeral for a soldier could not be the basis for a tort liability claim. Such speech would constitute a crime in many other democracies, he said.

“The theme of the First Amendment as it has been applied through the years in the courts is that we’re ready to take, and to inflict, a lot of pain for the — hopefully — greater good of living in a freer society and avoiding the risks of governmental involvement in what people say, what they’re allowed to say, and the like,” Abrams said.

“Eight members of the Court signed on to the proposition that outrageous, mean-spirited, harmful speech such as what was involved there was protected by the First Amendment because, for the most part, we just don’t trust the government to get involved in speech, thought, religious, political, et cetera positions and that’s the way we live.”

Take the Press Freedom Quiz

The Reporters Committee for Freedom of the Press and other coalition members have issued a Press Freedom Quiz. They hope participants:

  • Invite others to take the Press Freedom Quiz.
  • Use #ProtectPressFreedom on social media.
  • Acknowledge threats, show their support, highlight great reporting.
  • Download and share the campaign’s images on social media using #ProtectPressFreedom

Forthcoming Book on Dissent

In this first comprehensive overview of the intersection of immigration law and the First Amendment, a lawyer and historian traces ideological exclusion and deportation in the United States from the Alien Friends Act of 1798 to the evolving policies of the Trump administration.

Beginning with the Alien Friends Act of 1798, the United States passed laws in the name of national security to bar or expel foreigners based on their beliefs and associations―although these laws sometimes conflict with First Amendment protections of freedom of speech and association or contradict America’s self-image as a nation of immigrants. The government has continually used ideological exclusions and deportations of noncitizens to suppress dissent and radicalism throughout the twentieth and twenty-first centuries, from the War on Anarchy to the Cold War to the War on Terror.

In Threat of Dissent―the first social, political, and legal history of ideological exclusion and deportation in the United States―Julia Rose Kraut delves into the intricacies of major court decisions and legislation without losing sight of the people involved. We follow the cases of immigrants and foreign-born visitors, including activists, scholars, and artists such as Emma Goldman, Ernest Mandel, Carlos Fuentes, Charlie Chaplin, and John Lennon. Kraut also highlights lawyers, including Clarence Darrow and Carol Weiss King, as well as organizations, like the ACLU and PEN America, who challenged the constitutionality of ideological exclusions and deportations under the First Amendment. The Supreme Court, however, frequently interpreted restrictions under immigration law and upheld the government’s authority.

By reminding us of the legal vulnerability foreigners face on the basis of their beliefs, expressions, and associations, Kraut calls our attention to the ways that ideological exclusion and deportation reflect fears of subversion and serve as tools of political repression in the United States.

Collins & Skover’s Robotica to be published in Kazakhstan 

This news just in (yes, it’s true!): Robotica: Speech Rights and Artifical Intelligence (2018) is to be translated and published in the Republic of Kazakhstan.

In response to this news, Professor David Skover stated: “It is mind-boggling, but very intriguing,  that the former Soviet socialist state is interested in American free speech law and theory.”

One of our earlier works, Mania: The Story of the Outraged & Outrageous Lives That Launched a Cultural Revolution (2013 & 2018), was previously translated and published in the Czech Republic.

What’s next? Publication in the Principality of Liechtenstein? Stay tuned!

Forthcoming Scholarly Articles on Campaign Finance Law & Reforms 

Two New Scholarly Articles 

Book Review Essay: Healy Reviews Chemerinsky & Gillman Book on Campus Speech 

Robert Kerr on Abrams Anniversary 

2019–2020 SCOTUS Term: Free Expression & Related Cases

Pending Petitions

Pending Petitions: Free Speech Related 

Petitions Denied

Last Scheduled FAN

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.