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Floyd Abrams

First Amendment News 241: Floyd Abrams on Retaliation Against Lt. Col. Alexander Vindman

February 12, 2020


The Floyd Abrams Institute for Freedom of Expression at Yale Law School has just released the following statement from Floyd Abrams regarding retaliation against Lt. Col. Alexander Vindman:

The First Amendment has sustained heavy blows in recent days.

Last Friday, Lt. Col. Alexander Vindman was relieved of his duties at the National Security Council for nothing more or less than telling the truth in sworn testimony, provided under subpoena, to the House Intelligence Committee. The Trump Administration has made no effort to portray this decision, or a similar one with respect to his brother, Lt. Col. Yevge Vindman, as anything other than retaliation for Col. Vindman’s testimony.

This retaliation sends a chill through the ranks of government employees and seems plainly intended to do so. It is an affront to the First Amendment.

There can be no doubt that Col. Vindman’s speech lies at the heart of First Amendment protection. It was speech that addressed a matter of urgent public concern. Indeed, speech by government employees on subjects related to their jobs hold distinct value because these employees have access to information of clear public interest.

Just a few years ago, the Supreme Court unanimously affirmed this important point in Lane v. Franks, 573 U.S. 228 (2014), underscoring that pubic employees do not renounce their citizenship when they accept a government position, and describing a public employee’s sworn testimony on a matter of public concern as “a quintessential example” of First Amendment-protected speech.  In the words of that case, any obligation Col. Vindman had to the White House as an employee did not override the First Amendment’s protection of his “obligation, as a citizen, to speak the truth.”

Friday’s actions are a cause for great concern. This is not just because they run roughshod over the protection extended to Col. Vindman by the First Amendment, but also because of their broader implications for the ability of the American public to know what transpires in the executive branch. Simply stated, Col. Vindman’s firing strikes at the heart of the critical First Amendment interest in protecting government transparency, accountability, and the exposure of misconduct at the highest levels.

The retaliation against Col. Vindman reflects a dangerous impulse to punish speech that is at odds with the personal preferences and interests of the President — an impulse utterly inconsistent with the First Amendment.

Cert. Petition Filed: Union Speaking for Public-Sector Employees

The case is Reisman v. Associated Faculties of the University of Maine. The issue raised in the case according to SCOTUSBlog is: “Whether it violates the First Amendment to designate a labor union to represent and speak for public- sector employees who object to its advocacy on their behalf.”

Lower Court Opinion: Reisman v. Associated Faculties of the University of Maine (1st Cir. 2019)

→ Counsel of Record: Andrew M. Grossman

Federal Court in Kansas: ‘Ag-Gag’ Unconstitutional

According to Roxana Hegeman of the Associated Press, a federal judge has ruled that provisions in a Kansas law that ban the secret filming at slaughterhouses and other livestock facilities unconstitutionally criminalize free speech.

U.S. District Judge Kathryn Vratil mostly sided with a coalition of animal rights and consumer protection groups which had challenged the state’s “Ag-Gag” law, which was enacted in 1990. The law makes it a crime for anyone to take a picture or video at animal facilities without the owner’s consent or to enter them under false pretenses.

The regulation of speech is not viewpoint-neutral because it only applies to speech that is made with intent to damage the enterprise conducted at an animal facility, Vratil wrote.

The litigation, filed in December 2018 in U.S. District Court in Kansas, was brought by the Animal Legal Defense Fund, the Center for Food Safety, Shy 38 Inc., and Hope Sanctuary. It names Kansas Gov. Laura Kelly and Attorney General Derek Schmidt as defendants.

“We are carefully reviewing the court’s decision and will work to determine the appropriate next steps,” said Clint Blaes, spokesman for the attorney general’s office.

In a 39-page split decision the judge summarily ruled that a key section of the Kansas Farm Animal and Field Crop and Research Facilities Protect Act “plainly targets negative views about animal facilities and therefore discriminates based on viewpoint.” . . . .

Similar laws in Utah and Idaho have been struck down as unconstitutional violations of the First Amendment, and litigation is pending in several other states.

Additional Commentary from Mercy for Animals:

Over the three decades since Kansas enacted the law, 28 states have attempted to pass ag-gag legislation, but only nine have succeeded. Six ag-gag laws remain in effect, in Iowa, Missouri, Arkansas, Montana, Kansas, North Dakota, and North Carolina. The anti-whistleblower laws in Idaho and Utah and the first one in Iowa have been overturned. And more legal challenges are underway.

Related

Vegan ‘Cheese’ Company Challenges California’s Labeling Law

This from First Amendment Watch:

Miyoko Schinner, owner of Miyoko’s Kitchen, a popular vegan “cheese” company, is suing California food regulators after the state ordered her to stop using the word “butter” in her packaging.

Filed on February 6th in the United States District Court for the Northern District of California, the complaint argues that the state’s requirements “unreasonably restrict Miyoko’s right to free speech by prohibiting the company from making truthful statements about the identity, quality, and characteristics of vegan and plant based products…” . . . .

“In censoring Miyoko’s mission, its animal-friendly imagery, and its accurate descriptions of its plant-based products, the State of California has bowed to pressure from industry lobbyists and taken sides in a heated national debate between proponents of plant-based and animal-based foods,” the complaint argues.

California isn’t the only state asking companies selling plant-based alternatives to alter their branding. According to Associated Press, Arkansas, Alabama, Kentucky, Louisiana, Mississippi, Missouri, Montana, North Dakota, Oklahoma, South Carolina, South Dakota, and Wyoming have all passed laws prohibiting “misleading” labels, though not without pushback.

8th Circuit: Arkansas Blackout Period for Campaign Contributions Violates 1st Amendment

This from David Hudson over at The First Amendment Center:

Arkansas’s law that prohibits a person from making political contributions to a candidate until two years before election day likely violates the First Amendment, a federal appeals court has ruled.

The appeals court reasoned that the state failed to show that this “blackout period” furthers the state’s interests in battling corruption or the appearance of corruption.

Peggy Jones, a self-described “longtime political activist,” challenged the law on First Amendment grounds.She said that she wanted to contribute to the 2022 campaign of a state senator but did not for fear of violating state law. . . . 

8th Circuit Court Opinion: Jones v. Jegley.

Private University Censors Art Piece for ‘Violent’ Depiction of President Trump

Read this story from the First Amendment Watch.

Jaffer & Krishnan: ‘We May Never See John Bolton’s Book’

In case you missed their op-ed in The New York Times, here are a few annotated excerpts from the article by Jameel Jaffer and Ramya Krishnan:

On the Likelihood of Bolton testimony: “[I]t is far from clear how much of this story the public will be permitted to read, and when.”

On White House control: “[W]hat the public will see of Mr. Bolton’s account of malfeasance and corruption in the White House is, to a disturbing extent, up to the White House itself to decide.”

On prior restraint & prepublication review: “The system amounts to a prior restraint on speech, because it gives the agencies the chance to censor manuscripts before their publication. Though prior restraints are usually unconstitutional, including in the national security context, the government argues that they are justified because they are imposed through nondisclosure agreements signed by employees.”

On prepublication review system lacks safeguards: “[A]s our organization, the Knight Institute, and the American Civil Liberties Union argue in a case before a federal court in Maryland, the review system is far more sweeping than the government’s argument admits, and lacks the limits and safeguards that courts have required of prior restraints in other contexts.”

On deference to agencies: “Review standards are similarly difficult to pin down. There are no real deadlines. The agencies’ censors don’t usually explain their decisions. When they do, authors are afforded no meaningful opportunity to challenge them. Those who file lawsuits learn quickly that the courts almost always defer to the agencies’ decisions.”

Forthcoming Floyd Abrams Institute Event: “Expungement and the Press”

This February 25th (12:00 pm & 2:00 pm) the Floyd Abrams Institute and the Media Freedom & Information Access Clinic at Yale Law School will host a brown-bag event titled “Expungement and the Press: Should an Enforceable Right to be Forgotten Apply to the Reporting of Past Entanglements with Law Enforcement?” Here is a list of the participants in the event, which is open to the YLS Community only:

  • Jonathan Donnellan, Vice-President and Co-General Counsel, Hearst Corporation, and lead counsel in Martin v. Hearst, a case alleging defamation based on the continued posting of a news report about a later-expunged arrest.
  • Kate Klonick, Assistant Professor at St. John’s University Law School, Affiliate Fellow at the Information Society at Yale Law School and a leading expert on social media content moderation and platform governance.
  • Brian Murray, Associate Professor, Seton Hall Law School, and a leading expert on expungement law reform and current legislative developments at the state and federal level.
  • Chris Quinn, Editor at cleveland.com, who oversaw the launch of a “right to be forgotten” adopted voluntarily by that news organization.

Clare Norins to Head UGA Law’s New First Amendment Clinic

Professor Clare Norins

The University of Georgia School of Law hired a civil rights lawyer to lead its new First Amendment Clinic. Clare R. Norins, a former associate with the law firm of Beldock Levine & Hoffman, started work recently as the clinic’s inaugural director. She also will serve as an assistant clinical professor and teach a seminar course on the First Amendment. This from Law.com:

Norins said she has three primary goals for the new clinic:

  • Defend and advance First Amendment freedoms of speech, press, assembly and petition through direct client representation and advocacy;
  • Provide law students with the real-world practice experience to become leaders on First Amendment issues; and
  • Serve as a resource for organizations, journalists, public employees, and members of the public on issues of free expression and open access to public information.

She said she plans to organize opportunities for lawyers and members of the public to discuss First Amendment and related issues.

Forthcoming: Book on Assassination of Jamal Khashoggi

Karen Attiah, “Say Your Word, Then Leave: The Assassination of Jamal Khashoggi and the Power of the Truth” (Dey Street Books, Aug. 2020). Abstract: 

A searing, behind-the-scenes account of Jamal Khashoggi’s final year at the Washington Post, the search for answers after his brutal murder, and the defining fight for the soul of Washington, Saudi Arabia, and the greater Arab world.

In September 2017, Saudi journalist Jamal Khashoggi filed his first piece for the Washington Post with his editor, Karen Attiah. The column, about his decision to go into self-exile and speak out against Saudi Arabia’s Crown Prince Mohammed bin Salman, instantly went viral, and Jamal became a regular columnist for the paper. Working closely with Attiah to publish the newspaper’s first columns to appear in Arabic, Khashoggi, who dreamt of an Arab world free from tyranny and oppression, made it his mission to demystify Saudi Arabia for a global audience and to urge Saudi leadership to govern wisely.

A year later, he was dead.

Say Your Word, Then Leave is the riveting account of Khashoggi’s time at the Post. Attiah unravels the stranger than fiction story behind his disappearance and murder, the Post’s efforts to find answers and demand accountability. The saga  reveals Saudi Arabia’s deep ties with America—in Washington, D.C., on Wall Street, and in Silicon Valley—most notably, its close ties to the Trump administration. Over the course of their working relationship, neither Attiah nor Khashoggi imagined—though there were signs—that he would be kidnapped and killed by a Saudi hit squad in Turkey, or that she would be thrust into the global spotlight of an international political assassination that would grip the world.

A shocking, eye-opening tale of the fight for justice and a deeply moving portrait of Jamal and Karen’s growing friendship, Say Your Word, Then Leave goes behind the headlines as it illuminates the life-threatening dangers journalists face under repressive regimes, and brings together the inspiring stories of courageous activists working for change in the Arab world.

Forthcoming: First Amendment Reference Handbook

Michael C. LeMay & Alemayehu G. Mariam, “First Amendment Freedoms: A Reference Handbook” (ABC-CLIO, Sept. 2020). Abstract: 

First Amendment Freedoms: A Reference Handbook offers a comprehensive examination of the discourse on first amendment freedom issues in an objective and unbiased manner, and provides valuable data and documents to guide readers to further research on the subject.

First Amendment Freedoms: A Reference Handbook provides a comprehensive, objective, and accessible source of critically important information on the First Amendment freedoms of religion, speech, and assembly, and the post-Civil War Fourteenth Amendment. Geared for high school and college readers, it covers relevant historical events from the adoption of the Constitution and the Bill of Rights to the array of Supreme Court cases that further defined the scope and limits of First Amendment freedoms.

Composed of seven chapters, plus a glossary and index, the volume will present the background and history of the First Amendment; problems, controversies, and solutions; a perspectives chapter with nine original essay contributions; profiles of the leading actors and organizations involved in First Amendment politics; governmental data and excerpts of primary documents on the topic; and a resources chapter comprising an annotated list of the key books, scholarly journals, and nonprint sources on the topic. It closes with a detailed chronology of major events concerning First Amendment freedoms.

Forthcoming: Book on Flag-Salute Cases

Michael Kent Curtis, “Constitution and the Flag: The Flag Salute Cases” (Garland Science, January 1, 2021)

New Book: Free Speech Myths

Peter Cave, “The Myths We Live By: Adventures in Democracy, Free Speech and Other Liberal Inventions” (Atlantic Books, 2019). Abstract: 


In this witty and mischievous book, philosopher Peter Cave dissects the most controversial disputes today and uses philosophical argument to reveal that many issues are less straightforward than we’d like to believe. Leaving no sacred cow standing, Cave uses ingenious stories and examples to challenge our most strongly held assumptions. Is democracy inherently a good thing? What is the basis of so-called human rights? Is discrimination always bad? Are we morally obliged to accept refugees? In an age of identity politics and so-called ‘fake news’, this book is an essential resource for reinvigorating genuine public debate – and an entertaining challenge to accepted wisdom.

Latest Clear and Present Danger Podcast

Episode 40: “The Age of Human Rights: Tragedy and Triumph”. From the episode description:

The following issues are explored in this episode:

  • How the Communist East and the Capitalist West clashed over the limits of free speech when drafting the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights at the UN;
  • How Eleanor Roosevelt became a dogged and eloquent defender of principled free speech protections and warned against Soviet attempts to abuse hate speech restrictions to punish all dissent;
  • How the American position at the UN clashed with domestic laws targeting communists under the Second Red Scare and McCarthyism;
  • How the Soviet Bloc used laws against “incitement” to punish hundreds of dissidents and human rights activists behind the Iron Curtain;
  • How the Helsinki Final Act provided dissidents with a tool to hold their governments morally accountable for human rights violations;
  • How Western states and human rights NGOs gave dissidents like Vaclav Havel and Andrei Sakharov a voice and increased the pressure on the Soviet Bloc;
  • How the Helsinki Final Act contributed to the fall of Communism;
  • How, after the end of the Cold War, the OIC launched a campaign to prohibit “defamation of religions” at the UN;
  • How the OIC campaign managed to secure majorities at the UN and conflate blasphemy and hate speech;
  • How the OIC campaign was defeated by the Obama administration and the application of the Supreme Court’s decision in Brandenburg v. Ohio; and
  • How case law from the European Court of Human Rights undermines efforts to prevent future abuse of human rights to limit freedom of expression.

Latest So to Speak Podcast

Episode 103: “Guns, Addiction, and the Press“. From the episode description:

Is carrying a weapon during a political demonstration protected by the First Amendment?

What about intentionally creating an addictive video game?

Does the First Amendment’s press clause requirethe existence of news outlets?

On today’s episode of So to Speak: The Free Speech Podcast, we explore these three topics and more with First Amendment scholar Luke Morgan, who has written three fascinating articles that examine the scope of the First Amendment’s protections:

YouTube: Nadine Strossen & John A. Powell on Hate Speech

From the video description:

Law professors Nadine Strossen & John A. Powell discuss whether the government should regulate hate speech.

This conversation took place on March 15, 2019 at the University of Delaware conference “Speech Limits in Public Life: At the Intersection of Free Speech and Hate,” sponsored by the Institute for Humane Studies.

YouTube: Josh Blackman on ‘The Importance of Free Speech on Campus’

Watch the conversation, with Josh Blackman and Steven Sanders.

YouTube: Privacy And Free Speech — Dr. Gabriela Zanfir Fortuna

From the video description: “In this video within the Privacy Matters Series, Gabriela discusses the relationship between privacy and free speech.”

YouTube: Short Documentary on Citizens United

Video from Citizens United Productions.

In the News

2019–2020 SCOTUS Term: Free Expression & Related Cases

Opinions or Judgments Handed Down

Cert. Granted

Pending Petitions

Petitions Denied

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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.