The American Lawyer and ALM recently announced the first winners of the Tony Mauro Media Lawyer Award, “established this year to honor attorneys who zealously advocate for freedom of the press.” From their announcement:
The winners are Laura Prather, a partner at Haynes and Boone in Austin, for her successful efforts advocating for legislation to strengthen free press and speech rights in Texas; and CNN’s legal department, led by David Vigilante and Drew Shenkman, for its day-to-day work to protect the rights of the journalists of CNN and beyond.
“We had so many worthy submissions for possible nominees that we decided to give two awards, rather than one,” said Tony Mauro, ALM’s longtime Supreme Court correspondent. “It was heartwarming and uplifting to review the work of so many lawyers who have devoted themselves to protect First Amendment rights on behalf of the press and the public. What they do is crucial to our democracy.”
The award was created to mark Mauro’s recent retirement. In addition to covering the U.S. Supreme Court for the last 40 years, Mauro has been a long-serving member of the steering committee of the Reporters Committee for Freedom of the Press. In 2011, he was admitted into the Freedom of Information Hall of Fame, recognizing his work promoting greater public access to the courts and other institutions.
The awards will be given to the recipients at the annual American Lawyer Industry Award gala in New York City on Dec. 4.
The choice of Laura Prather reflects the importance of free press advocacy at the state level through legislation and litigation, and the award for CNN’s legal department highlights the perhaps under-publicized work of in-house counsel in the First Amendment arena.
“Laura has changed the legal landscape for free speech rights in Texas,” said George Freeman, executive director of the Media Law Resource Center, who nominated Prather. Prather was instrumental in the passage of important pieces of legislation involving reporters’ privilege, defamation and SLAPP litigation. The latter refers to “strategic lawsuit against public participation,” baseless but costly lawsuits aimed at intimidating and silencing journalists and members of the public who speak out.
The Texas anti-SLAPP law, which Prather helped create in 2011, was under attack by the Texas legislature in 2019. Prather mobilized a coalition of media outlets and public interest legislature in 2019. Prather mobilized a coalition of media outlets and public interest organizations to support the law, and a reform measure was passed that “preserves the integrity” of the law, and “in some instances, makes its protections stronger,” according to Freeman.
CNN’s legal department, led by Vigilante and Shenkman, was instrumental in the high-profile case of CNN’s chief White House correspondent Jim Acosta. His “hard pass,” necessary for access to the White House, was revoked because of President Donald Trump’s displeasure over Acosta’s questioning and behavior. Working with Gibson, Dunn & Crutcher partner Theodore Boutrous Jr., the in-house team developed a “comprehensive strategy to hold the administration to account,” according to HBO senior vice president Stephanie Abrutyn, who nominated the CNN team. The strategy included an unusual lawsuit against the Trump administration. Last November, Acosta’s pass was restored, and the lawsuit was dropped.
But that was not the CNN legal team’s only recent action on behalf of CNN’s journalists. The legal department manages “a multitude of access and freedom of information cases around the country,” Abrutyn wrote. “Whether supporting physical security efforts or making sure the journalists know the lawyers have their backs if something goes wrong, CNN’s in-house lawyers are always there.”
Academic Freedom: Students at Williams Call for a Boycott of the English Department
As reported in Inside Higher Ed:
Saying that their English department treats race and critical theory as an afterthought, students call on their peers to steer clear of most program offerings.
Williams College built its reputation on the liberal arts. Now students at the college are calling for a boycott of the English department, saying the program has long had a racist underbelly. Their comments echo those made by some past and present professors of color.
“We, the undersigned students of Williams College, pledge to an indefinite boycott of all English classes that do not take seriously the matter of race — that is, those classes which do not include more than a token discussion of race and more than a token number of writers of color,” reads a boycott pledge that is a part of a detailed pro-boycott website. The names and identities of those taking the pledge are not yet public.
“We are undergoing this boycott to create the pressure necessary to force the department, and the administration, to take these issues seriously and to redress past and current harm with urgency,” reads the pledge.
No Standing: KY Supreme Court Rules in Favor of Print Shop Owner in Gay Rights Case
This from an Alliance Defending Freedom story:
The Kentucky Supreme Court handed a victory Thursday to Lexington promotional print shop owner Blaine Adamson. In its ruling, the Kentucky Supreme Court unanimously affirmed, as Alliance Defending Freedom attorneys argued from the beginning, that the Gay and Lesbian Services Organization did not have a legal right to sue Adamson or his business, Hands On Originals, for declining to print a message that violates his religious beliefs.
Quote from the Lexington-Fayette Urban County Human Rights Commission v. Hands on Originals (2019) opinion regarding lack of standing:
Normally in these cases, courts look to whether the requesting customer, or some end user that will actually use the product, is a member of the protected class. And even when the reason for the denial is something other than status (conduct, for example), ways exist to determine whether the individual(s) (the requesting customer(s) or end user(s)) was actually discriminated against because the conduct cited is so closely related to that individual’s status. But in either scenario (whether the person allegedly discriminated against is the requesting customer or some end user) the individual is the one who has filed the lawsuit, so the court can properly determine whether that person has been discriminated against. . .
But without an individual, as required by Section 2-32(2)(a), this analysis cannot be conducted. Our decision, based on lack of standing, is necessary because without a proper complainant, no determination can be made as to whether the ordinance was violated.
As such, under Section 2-32(2)(a), an organization—here, GLSO— cannot bring a claim under Section 2-33. Accordingly, GLSO lacked statutory standing, and the Commission erred in not dismissing the case.
$25 Million Defamation Lawsuit Filed Against Politico by Trump Staffer
As reported by First Amendment Watch:
A senior director of President Donald Trump’s National Security Council (NSC) has filed a $25 million dollar defamation suit against Politico and one of its reporters, Natasha Bertrand, over two articles published in October he claims disparaged his “honesty, veracity, and integrity.”
The first article, “Nunes protogégé fed Ukraine info to Trump,” claimed that attorney Kashyap Patel had passed negative information about Ukraine to the president, and that his actions had fueled ‘the president’s belief that Ukraine was brimming with corruption and interfered in the 2016 election on behalf of the Democrats.’
Bertrand’s second article claimed that a current NSC staffer believed Patel had “circumvented normal NSC process to get negative material about Ukraine in front of the president.”
Both articles relied on anonymous sources who had attended closed-door hearings with Fiona Hill, the former senior director for European and Russian Affairs, and Alexander Vindman, the NSC’s top Ukraine expert. The chair of the House Intelligence Committee, Rep. Adam Schiff, eventually shared the transcripts from the hearings.
In his complaint, Patel denies communicating with the president about Ukraine or supplying the president with negative information about the eastern-European country. The complaint accuses Politico and Bertrand of intentionally publishing false information in order to damage Patel’s reputation, and colluding with Schiff to advance the “impeachment inquisition.”
→ Complaint: Patel v. Politico (Cir. Ct. of Henrico, Va., 2019)
→ Steven S. Biss, Counsel for Plaintiff
Sweden Drops Assange Rape Investigation
As reported in Politico:
The alleged rape investigation involving WikiLeaks founder Julian Assange, who is currently in prison in Britain, has been discontinued, a Swedish prosecutor said Tuesday.
“I want to inform about my decision to discontinue the preliminary investigation,” Deputy Chief Prosecutor Eva-Marie Persson told a news conference.
Kristinn Hrafnsson, WikiLeaks editor-in-chief, said in a tweet that the focus should now move onto the “threat” that Assange has been “warning about for years: the belligerent prosecution of the United States and the threat it poses to the First Amendment.”
And this from a New York Times story:
In September, a British court ruled that Mr. Assange must stay in a British jail until his extradition hearing, which is planned for early next year.
The Justice Department has indicted Mr. Assange on a slew of charges including 17 counts of violating the Espionage Act, accusing him of the solicitation, acquisition, and publication of classified information from the former army intelligence analyst Chelsea Manning.
The charges raised questions about press freedom, and critics have expressed concern that the case could set a precedent to criminalize future acts of national security journalism.
‘IM GOD’ License Plate Request: Kentucky Man Wins First Amendment Case
As reported in the Courier Journal:
After a three-year legal battle, a Kentucky man got the OK Wednesday by a federal judge in Frankfort to get a license plate with the letters “IM GOD.”
According to court documents, Ben Hart applied in 2016 for a Kentucky license plate with those words through the state’s Transportation Cabinet, which allows people to pay for special plates “with personal letters or numbers significant to the applicant.”
According to court documents, other similar plates have been approved, such as “GODLVS,” “TRYGOD,” “1GOD” and “NOGOD.”
In an opinion issued by a U.S. District Court in Frankfort on Wednesday, the court ruled “vanity plates are private speech protected by the First Amendment.”
Richard Stengel: ‘Why America Needs a Hate Speech Law’
Mr. Stengel, the former president and CEO of the National Constitution Center, recently wrote an op-ed in the Washington Post, which in part stated:
Let the debate begin. Hate speech has a less violent, but nearly as damaging, impact in another way: It diminishes tolerance. It enables discrimination. Isn’t that, by definition, speech that undermines the values that the First Amendment was designed to protect: fairness, due process, equality before the law? Why shouldn’t the states experiment with their own version of hate speech statutes to penalize speech that deliberately insults people based on religion, race, ethnicity and sexual orientation?
Fish on Free Speech
English and law Professor Stanley Fish has returned to the First Amendment and free speech world with a new book and several op-eds:
- “The First: How to Think About Hate Speech, Campus Speech, Religious Speech, Fake News, Post-Truth, and Donald Trump” (Atria/One Signal Publishers, 2019)
- I Wasn’t Censored When I Was Disinvited, Wall Street Journal (Nov. 17, 2019)
- The reason Mark Zuckerberg’s comments are laughable, CNN (Nov. 1, 19)
- So to Speak Podcast: There’s No Such Thing as Free Speech, Argues Professor Stanley Fish (Oct. 31, 2019)
Note: On Monday of this week, Professor Fish spoke at a First Amendment Salon in New York City. The video from that provocative exchange will be posted soon.
2019 Nackey S. Loeb First Amendment Award Presented to Late VA Whistleblower Kois
From the New Hampshire Union Leader:
Dr. William “Ed” Kois, the late VA Medical Center doctor who prompted a nationwide review after exposing poor conditions at the Manchester VA hospital, was the recipient of the 2019 Nackey S. Loeb First Amendment Award. Kois, who died in July in a car crash in Hampton, will be posthumously honored at the 17th annual First Amendment Awards event this past Tuesday, Nov. 19 at 7 p.m. at the Palace Theatre.
Greg Lukianoff on the Mend
As noted on Facebook, FIRE’s CEO Greg Lukianoff is recovering rather well from his surgery.
Unprecedented Podcast on Snyder v. Phelps
This episode of Unprecedented concerns the following:
When Albert Snyder arrived for the funeral service of his son Matthew, a young Marine who died in the Iraq War, he was surprised by the noise and chaos that greeted him. Seven members of the Westboro Baptist Church—which believes that U.S. military casualties are a result of God’s anger at an America that embraces sin—were picketing the funeral, holding signs with messages like “Thank God for Dead Soldiers.” Snyder sued Westboro for Intentional Infliction of Emotional Distress, and the Supreme Court had to decide: Does the First Amendment protect hurtful speech directed at a private citizen?
So to Speak Podcast Interview with Timothy Zick
Forthcoming Book on Comedy & Censorship
- Judy Gold, Yes I Can Say That: When They Come for the Comedians We’re All in Trouble (Dey Street Books, July 28, 2020). Abstract:
From award-winning comedian Judy Gold, an equal parts thoughtful and hilarious polemic on the current efforts to censor comedians, arguing that they undermine the art—and purpose—of comedy itself.
“You can say anything that comes to mind as long as it is funny.” — Richard Pryor
The fallout after Michelle Wolf’s roast at the 2018 White House Correspondent’s Dinner, Samantha Bee’s forced apology after calling Ivanka Trump a “feckless c*nt,” Kathy Griffin’s being “blacklisted” from Hollywood after posting a photo with what looked like the president’s severed head, all represent a dangerous and growing trend—to censor comedians.
In Yes I Can Say That, comedy veteran Judy Gold argues that “no one has the right to tell comics what they can or cannot joke about…. Laughter is a unifier. It’s the best medicine. It’s also the most palatable way to bring up seditious, subversive topics.” For Gold, nothing is more insidious than enforcing silence and repressing jokes—the job of a comedian is to expose society’s demons, and confront them head-on, no prisoners allowed. In ten impassioned polemics, she frames comedy as a tool of empowerment, a way to reclaim hateful rhetoric and battle the democracy-crushing plight of censorship.
Uninhibited and bold, Gold is as skilled at making readers laugh as she is at exposing uncomfortable truths about our culture and society. In this era of partisan politics and gaping inequalities, Yes I Can Say That is the refreshingly candid, wickedly funny and deliciously blunt manifesto we need.
Forthcoming Book on Democracy & Free Speech
- Ashutosh Bhagwat, “Our Democratic First Amendment” (Cambridge University Press, June 30, 2020)
More In the News
- Eugene Volokh, Barred from Participating in Public High School Graduation for Using “Nigger” in a Tweet?, The Volokh Conspiracy (Nov. 19. 2019)
- Eugene Volokh, Monroe County (N.Y.) Proposed Ban on Intentionally Annoying a Police Officer …, The Volokh Conspiracy (Nov. 18, 2019)
- Lee Brown, Florida Man Jailed for Cursing Out Judge in Letter — Sparking First Amendment Fight, New York Post (Nov. 18, 2019)
- Upstate New York County Legislature Passes Controversial Bill Criminalizing “Annoying” a Police Officer, First Amendment Watch (Nov. 18, 2019)
- Twitter Announces Details of New Political Ad Policy, First Amendment Watch (Nov. 18, 2019)
- David Hudson, Jr., 11th Circuit Panel Reinstates Christian School’s Lawsuit Over Football Prayer, Free Speech Center at MTSU (Nov. 16, 2019)
- Dallas Transit Agency to Pay $345,000 to Settle Police Recording Lawsuit, First Amendment Watch (Nov. 15, 2019)
- David L. Hudson, Jr., Cheerleader Loses Student Free Speech Case Over Tweets, Free Speech Center at MTSU (Nov. 14, 2019)
- Eliza Relman, Alexandria Ocasio-Cortez Hasn’t Stopped Blocking Critics on Twitter Despite Settling a Lawsuit Charging She Violated the First Amendment, Business Insider (Nov. 11, 2019)
2019–2020 SCOTUS Term: Free Expression & Related Cases
- Barr v. American Association of Political Consultants, Inc.
- Charter Communications, Inc. v. Gallion
- Elster v. City of Seattle
- Facebook, Inc. v. Duguid
- Arlene’s Flowers Inc. v. Washington
- EMW Women’s Surgical Center v. Meier
- Americans for Prosperity Foundation v. Becerra
- New York Republican State Committee v. Securities and Exchange Commission
- Capital Associated Industries Inc. v. Stein
- Libertarian National Committee Inc. v. Federal Election Commission
- Carney v. Adams
- Archdiocese of Washington v. Washington Metropolitan Area Transit Authority
- United States Agency for International Development v. Alliance for Open Society International Inc.
- Carter v. Massachusetts
- Thompson v. Hebdon
- Price v. City of Chicago, Illinois
- National Review, Inc. v. Mann
- Competitive Enterprise Institute v. Mann
- Charter Communications Inc. v. National Association of African American-Owned Media
Pending Petitions: Free Speech Related
- Miller v. Inslee
- Buchanan v. Alexander
- Lipschultz v. Charter Advanced Services, LLC (free speech-related)
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