A quarter-century or so ago, a majority of the Supreme Court, per Chief Justice William Rehnquist, sustained the constitutionality of a 36-foot abortion clinic buffer zone and a related noise-level provision. The Court held that such restrictions burdened no more speech than necessary to serve the goals sought by the injunction. The case was Madsen v. Women’s Health Center, Inc (1994).
Then, in Schenck v. Pro-Choice Network of Western New York (1997), Rehnquist again spoke for the majority in holding that while fixed buffer zones were constitutional, floating buffer zones were not. Jay Sekulow argued on behalf of the petitioner while Walter Dellinger argued on behalf of the United States as amicus curiae supporting the respondents.
Next, in Hill v. Colorado (2000) — again, with Sekulow for the petitioners — the Court sustained a law that required speakers to obtain consent from people within 100 feet of a health care facility’s entrance before speaking, displaying signs, or distributing leaflets to them. The vote was 6-3 with Justices Kennedy, Scalia and Thomas in dissent.
Things changed in McCullen v. Coakley (2014); there, Chief Justice Roberts wrote for the unanimous majority in striking down a Massachusetts law that created a 35-foot buffer zone around the entrances, exits, and driveways of abortion clinics. While Roberts declined the invitation to overrule Hill v. Colorado, four justices would have either limited or overruled Schenck and Hill.
The latest controversy
Against that historical backdrop comes the cert. petition in the case of Bruni v. City of Pittsburgh. As stated by Judge Cheryl Ann Krause in her opinion for a Third Circuit panel, the relevant law and facts are:
This case requires us to determine the constitutionality of a Pittsburgh ordinance that creates a fifteen-foot “buffer zone” outside the entrance of any hospital or healthcare facility. Pittsburgh, Pa., Code § 623.04 (2005). In relevant part, the Ordinance states that “[n]o person or persons shall knowingly congregate, patrol, picket or demonstrate” in the prescribed zone. Outside of a Planned Parenthood in downtown Pittsburgh, Plaintiffs engage in leafletting and “peaceful . . . one-on-one conversations” conducted “at a normal conversational level and distance” intended to dissuade listeners from obtaining an abortion. As the City has asserted that the Ordinance applies to this speech, known as “sidewalk counseling,” Plaintiffs argue that the Ordinance is facially unconstitutional under the First Amendment and the District Court erred in granting summary judgment in the City’s favor. Because we conclude that the Ordinance does not cover sidewalk counseling and thus does not impose a significant burden on speech, we will affirm.
As the petitioners state them, the issues raised in the case are:
1. Whether federal courts have authority to save a state or local law from unconstitutionality by positing a limiting construction that has no state-law basis and contradicts governing authorities’ understanding of their own law.
2. Whether Pittsburgh’s buffer-zone ordinance violates the Free Speech Clause.
→ The lead lawyers in the case are Kristen K. Waggoner (who was counsel for the petitioners in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission (2018)) and John J. Bursch (who argued on behalf of the respondent states in Obergefell v. Hodges (2015)).
Eight-member court denies cert. in religious speech case
- Archdiocese of Washington v. Washington Metropolitan Area Transit Authority (statement of Gorsuch, J., joined by Thomas, J., re denial of cert.). The issues according to SCOTUSblog:
(1) Whether the Washington Metropolitan Transit Authority’s policy of refusing to accept advertisements that promote or oppose religion or reflect a religious perspective violates the First Amendment; and (2) whether that discrimination against religious speech violates the Religious Freedom Restoration Act.
Court calls for government response in nonconsensual dissemination of non-obscene materials case
- Austin v. Illinois (response due on or before May 4, 2020). The issues according to SCOTUSblog:
(1) Whether strict First Amendment scrutiny applies to a criminal law that prohibits nonconsensual dissemination of non-obscene nude or sexually oriented visual material; and (2) whether the First Amendment requires a law that prohibits nonconsensual dissemination of non-obscene nude or sexually oriented visual material to impose a requirement of specific intent to harm or harass the individual(s) depicted.
- Emma Colton, “Chilling effect on First Amendment rights’: Nonprofit group threatens lawsuit if pastor can’t hold drive-in Easter service,” Washington Examiner (April 6)
- Danica Coto, “Puerto Rico imposes stricter COVID-19 measures amid lawsuit,” Associated Press (April 5)
- “Miami Herald reporter excluded from COVID-19 press briefing,” First Amendment Watch (April 3)
- “Coronavirus and the First Amendment,” The First Amendment Encyclopedia (2020)
- “Free expression and the coronavirus pandemic,” National Coalition Against Censorship (2020)
- “Knight Institute sues CDC for release of policies restricting employees’ ability to speak to press and public” (April 2)
- “FIRE to NYU medical school: Stop muzzling faculty fighting coronavirus,” FIRE (March 31)
- Eugene Volokh, “Liberty of movement and assembly,” The Volokh Conspiracy (April 4). Excerpt:
Liberty of movement and of physical association—coming together for political, religious, social, professional, recreational, or other purposes—is likewise tremendously important. “The right of the people peaceably to assemble, and to petition the Government for a redress of grievances” is just one particular express elaboration of this liberty. But the premise behind the liberty is that people assembling together can choose to be “peaceable,” and thus physically safe for each other and for bystanders, and we should punish only those who deliberately abuse the right (by acting non-peaceably).
Contagious disease, unfortunately, has the property that I can sicken or even kill you with it entirely inadvertently, without any choice on my part. It’s not like carrying a gun, which I might misuse but which I can choose to use properly. It’s like carrying a gun that every so often (and largely unavoidably) just shoots a bullet in a random direction, without my pulling the trigger.
Mayer & Bowman on Ninth Circuit First Amendment parody case
- Marc E. Mayer and Theresa B. Bowman, “Freedom to squeak: The Ninth Circuit finds First Amendment protection for parody dog toy,” Mitchell Silberberg & Knupp (April 3)
In VIP Products v. Jack Daniel’s Properties, Inc., No. 18-16012 (9th Cir. March 31, 2020), the Court of Appeals for the Ninth Circuit held this week that a rubber dog toy designed to resemble a bottle of Jack Daniel’s Black Label Tennessee Whiskey — the “Bad Spaniels Silly Squeaker” — is an “expressive work” and therefore entitled to interpose a First Amendment defense against the whiskey company’s trademark infringement claims. . . .
In a 3-0 decision, the Ninth Circuit reversed the District Court’s decision. The Ninth Circuit agreed that Jack Daniel’s bottle design, namely the combination of its shape and label design, was entitled to trademark protection because it is distinctive, non-generic and nonfunctional. But the Court of Appeals also concluded that the “Bad Spaniels” toy was a protected “expressive work,” and therefore the District Court erred in assessing the likelihood of confusion factors without giving proper weight to the First Amendment interests. By concluding that the toy was an expressive work, the Ninth Circuit arguably broadened the scope of First Amendment protection accorded to consumer products facing claims of trademark infringement and dilution. . . .
VIP Products is notable because it represents the first time that a court squarely found a consumer product to be an expressive work for purposes of a trademark analysis. However, there is also reason to believe the opinion will prove primarily relevant to parody products. The Ninth Circuit focused on the humorous message conveyed by the dog toy. Bad Spaniels, with its “43% POO BY VOL.,” was primarily made to be funny – and the Ninth Circuit concluded that this vaulted Bad Spaniels into the realm of artistic expression. The dog toy, observed the Court, is “surely not the equivalent of the Mona Lisa” but it does communicate a humorous message through word play that is “not rendered non-expressive simply because it is sold commercially[.]” According to the Court, it is Jack Daniel’s own “idealized image” of its brand as a representation of product excellence that sets the Bad Spaniels apart as artistic expression. “Bad Spaniels comments humorously on precisely those elements that Jack Daniels seeks to enforce here” by “juxtaposing the irreverent representation of the trademark with the idealized image created by the mark’s owner.”
Coming next month: Bhagwat on free expression
- Ashutosh Bhagwat, “Our Democratic First Amendment” (Cambridge University Press, May 31, 2020)
The First Amendment to the US Constitution protects free speech, freedom of the press, freedom of association and assembly, and the right to petition the government. Why did the Framers protect these particular rights? What role were these rights intended to play in our democracy? And what force do they retain in today’s world? In this highly readable account, Ashutosh Bhagwat explores the answers to these questions.
The first part of the book looks at the history of the First Amendment, early political conflicts over its meaning, and the lessons to be learned from those events about the nature of our system of government. The second part applies those lessons to our modern, fractious democracy as it has evolved in the age of the Internet and social media. Now as then, the key to maintaining that democracy, it turns out, is an active citizenry that fully embraces the First Amendment.
Book on free speech ‘myths’
- Peter Cave, “The Myths We Live By: Adventures in Democracy, Free Speech and Other Liberal Inventions” (Atlantic Books, Sept. 5, 2019)
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.
Forthcoming book on free speech wars
- Charlotte Lydia Riley, editor, “The Free Speech Wars: How Did We Get Here and Why Does It Matter” (Manchester University Press, Jan. 19, 2021)
Collecting together a diverse group of commentators, activists and academics, the book answers the following questions: who gets to exercise free speech and who does not? What happens when powerful voices think they have been silenced? Why do some issues become sites of free speech battles and what are the consequences of this? How do the spaces and structures of ‘speech’ – mass media, the internet, the lecture theatre, the public event, the political rally – shape this debate?
This book argues that free speech is invoked by actors right across the political spectrum, but that in reality very few of the debates have a clear or coherent idea of what is meant by the concept of ‘free speech’.
John Vile on Shiell’s ‘African Americans and the First Amendment’
- John Vile, Book Review, “African Americans and the First Amendment: The case for liberty and equality,” The Free Speech Center (April 3)
“African Americans and the First Amendment: The Case for Liberty and Equality” (Albany: State University of New York Press, 2019) by Timothy C. Shiell documents how freedom of speech, press, assembly, and related First Amendment rights have helped secure greater equality for African Americans.
More provocatively, in opposing those who would formulate broad campus speech codes or laws against hate speech, author Shiell convincingly argues that the values of free expression and equality “are not in fundamental conflict” (p. x) but are largely complimentary. Sheill is a professor of philosophy at the University of Wisconsin-Stout and has previously written the book “Campus Hate Speech on Trial,” which is now in its second edition. . . .
Shiell divides his book into four chapters.They respectively deal with: American Apartheid (his description of laws relative to race from colonial times through the 1930s); the pivotal case of Herndon v. Lowry (1937), which he considers to have been more important than the more publicized Scottsboro Cases; the civil rights movement; and modern calls for broad campus speech codes and laws against hate speech.
- Watch Geoff Stone speak on Voices of Today (April 2).
- Eugene Volokh, “Candidate for Wisconsin S. Ct. (Judge Jill Karofsky) seeks preliminary injunction against allegedly libelous campaign ads,” The Volokh Conspiracy (April 6)
- Joe Cohn, “The Department of Education should not delay releasing the Title IX regulations,” FIRE (April 6)
- Kyle Orland, “Activision has a First Amendment right to use humvees in Call of Duty,” ARS Technica (April 2)
2019–2020 SCOTUS term: Free expression & related cases
Opinions or Judgments Handed Down
- Thompson v. Hebdon (per curiam with Ginsburg, J., statement concurring in remand)
- United States v. Sineneng-Smith (argued Feb. 25)
- Carney v. Adams (TBD)
- United States Agency for International Development v. Alliance for Open Society International Inc. (TBD)
- Barr v. American Association of Political Consultants, Inc. (TBD)
- Chiafalo v. Washington (consolidated w/ Colorado Department of State v. Baca) (TBD)
- Fulton v. City of Philadelphia (TBD)
- Bruni v. City of Pittsburgh
- Waggy v. United States
- Waronker v. Hempstead Union Free School District
- Schmitt v. LaRose
- Austin v. Illinois
- Reisman v. Associated Faculties of the University of Maine
- National Association for Gun Rights, Inc. v. Mangan
- Institute for Free Speech v. Becerra
- Mckesson v. Doe
- Americans for Prosperity Foundation v. Becerra
- Thomas More Law Center v. Becerra
- Jarchow v. State Bar of Wisconsin
- Facebook, Inc. v. Duguid
- Arlene’s Flowers Inc. v. Washington
- Price v. City of Chicago, Illinois
- Charter Communications, Inc. v. Gallion
- Archdiocese of Washington v. Washington Metropolitan Area Transit Authority
- Elster v. City of Seattle
- Doe 1 v. Federal Election Commission
- Fleck v. Wetch
- New York Republican State Committee v. Securities and Exchange Commission
- EMW Women’s Surgical Center v. Meier
- Carter v. Massachusetts
- Capital Associated Industries Inc. v. Stein
- National Review, Inc. v. Mann (Alito, J., dissenting from denial of cert.)
- Competitive Enterprise Institute v. Mann (Alito, J., dissenting from denial of cert.)
- Libertarian National Committee Inc. v. Federal Election Commission
- Miller v. Inslee
- Buchanan v. Alexander
- Lipschultz v. Charter Advanced Services, LLC
- Gatehouse Media New York Holdings Inc. v. New York
First Amendment Related
- Dyroff v. Ultimate Software Group Inc. (interpretation of Section 230(c)(1))
- Force v. Facebook Inc. (interpretation of Section 230(c)(1))
First Amendment Related: Cert. Denied
- Olivas-Motta v. Barr (void for vagueness, “moral turpitude”)
Last Posted FAN
- FAN 248.1: “Government as speaker vs government as censor — on Helen Norton’s government speech book”
Last Scheduled FAN