“These are great people. . . Look they want to get—they call cabin fever. You’ve heard the term? They’ve got cabin fever. They want to get back. They want their life back. Their life was taken away from them.”
The words “compelling” and “strict scrutiny” found their way into the vernacular of free speech law to remind everyone that the words “no law” of the First Amendment are not to be taken literally. Then again, other words such as “overbreadth,” “void for vagueness,” and “legitimate state interest” were inserted into the legal vernacular to better ensure that emergency exceptions were “narrowly tailored.”
There is no clearly established public health exception among the 43 judicially recognized exceptions to the First Amendment. Despite what Chief Justice John Roberts declared in his majority opinion in United States v. Stevens (2010) — “we decline to carve out from the First Amendment any novel exception” — one suspects he might discern some such exception if a narrowly drawn and clearly defined and neutrally-worded law was applied to a public health and COVID-19 case. Then again, perhaps such an exception is already lurking in, for example, some of the commercial speech cases (see below).
In this regard, let me call Professor Eugene Volokh to the witness stand. Professor Volokh, how in your opinion are we to consider freedom of assembly rights in the context of COVID-19?
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.
Of course, “there are all sorts of complicated questions” as Volokh correctly notes. For example, there is “the uncertainty of just how reliable various protective measures might be: For instance, if we were confident that wearing a certain kind of mask would prevent the wearer from infecting others, then there would be much less justification for banning mask-wearers from traveling and gathering with others. Unfortunately, so much remains unknown about the facts here.”
In Jacobson v. Commonwealth of Massachusetts (1905) the Court (per Harlan, J.) upheld a compulsory state vaccination law for smallpox as a legitimate exercise of state police powers, this notwithstanding claims that the law impermissibly interfered with personal liberties.
Freedom of press
- Gabe Rotman, “Special analysis: COVID-19 emergency measures and press freedom,” Reporters Committee (April 2)
- “Knight Institute sues CDC for release of policies restricting employees’ ability to speak to press and public,” Knight First Amendment Institute (April 2)
- “Miami Herald reporter excluded from COVID-19 press briefing,” First Amendment Watch (April 3)
Commercial speech & public health cases
- Lorillard Tobacco v. Massachusetts (2001)
- Thompson v. Western States Medical Center (2002)
- Sorrell v. IMS Health, Inc. (2011)
- Ruth Ann Strickland, “Alcohol advertising,” The First Amendment Encyclopedia
Range of COVID-19 First Amendment cases
- Bonnie Kristian, “How the coronavirus fight might end up at the Supreme Court,” The Week (April 1)
The First Amendment protects our freedoms of religion, speech, press, assembly, and petition, and at least two of those could easily be the subject of post-pandemic lawsuits. The most obvious candidate is assembly, as a growing number of cities and states have issued some version of a stay-at-home order, putting police power behind the federal recommendation against gatherings of 10 or more.
Cases whose appeal potentially could go all the way to the top are already happening. In New Jersey, parents who hosted a party of several dozen people were charged with child endangerment. And in New Mexico, the president of the Albuquerque Tea Party has filed suit in federal court against Gov. Michelle Lujan Grisham (D), alleging her shelter-in-place order violates his right to free assembly and worship by prohibiting social and religious gatherings. The question for the Supreme Court would be whether that claim is correct, whether the state interest behind the shelter-in-place order is compelling enough to override First Amendment guarantees.
That brings us to the other probable type of First Amendment case, which would concern limits on free exercise of religion. While most churches and other places of worship have suspended in-person services, some — including a few megachurches which host crowds of thousands — have refused to close their doors. One recent survey of regular churchgoers found one in 10 reporting their churches are open. . . .
- William P. Barr, “Attorney General William P. Barr issues statement on religious practice and social distancing; Department of Justice files statement of interest in Mississippi church case,” U.S. Department of Justice (April 14)
- Colleen Long, Michael Balsamo & Emily Wagster Pettus, “Justice Department takes church’s side in First Amendment COVID-19 suit,” Associated Press (April 16)
- Joe Marusak, “Abortion protesters sue city of Charlotte over COVID-19 social distancing arrests,” WBTV (April 19)
- Scott Shackford, “A teenager posted about her COVID-19 infection on Instagram. A deputy threatened to arrest her if she didn’t delete it,” Reason (April 17)
- “Wisconsin police officer sued for ordering teenager to remove Instagram posts describing COVID-19 symptoms,” First Amendment Watch (April 21)
Clear & Present Danger podcast: Facebook’s content management in the age of Coronavirus
- “Special edition — Monika Bickert” (head of Global Policy Management at Facebook) (April 17). Description:
The coronavirus has disrupted life as we know it. Billions of people across the world are caught in varying degrees of lockdowns with severe restrictions on their freedom of movement. But while our physical world has shrunk, cyberspace remains wide open. And there is no shortage of information as the internet overflows with torrents of data, news, and updates about the ongoing crisis. But in parallel with the COVID-19 pandemic, the World Health Organization has warned of an “infodemic” of mis- and disinformation spreading through social media and messaging apps.
Policymakers at social media platforms are acting like gatekeepers, deciding what content is sufficiently healthy for their users around the world to consume. These decisions have real consequences for the practical exercise of freedom of speech and access to information for billions of people. With me to discuss how Facebook is navigating this unprecedented situation is Monika Bickert, who is the Head of Global Policy Management at Facebook with responsibility for content moderation.
Volokh on assembly
- Eugene Volokh, “Judge rejects freedom of assembly/association challenge to New Mexico limit on in-person worship,” The Volokh Conspiracy (April 18)
→ Legacy Church v. Kunkel, (U.S. Dist. Ct, NM) (April 14)
Scholarly articles on public health & civil liberties
- Kevin Malone & Alan Hinman, “Vaccination mandates: The public health imperative and individual rights,” in Richard Goodman et al., eds., Law in Public Health Practice (2nd ed., 2007)
- Wendy Parmet, “Public health and constitutional law: Recognizing the relationship,” Journal of Health Care Law and Policy (2007)
- “The US anti-prostitution pledge: First Amendment challenges and public health,” PLoS (2007)
- Wendy E. Parmet & Jason A. Smith, “Free speech and public health: A population-based approach to the First Amendment,” Loyola Los Angeles Law Review (2006)
COVID-19: Free speech & assembly issues
- John Vile, “Coronavirus and the First Amendment,” The First Amendment Encyclopedia (2020)
- 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)
- “Free expression and the coronavirus pandemic,” National Coalition Against Censorship (2020)
- “FIRE to NYU medical school: Stop muzzling faculty fighting coronavirus,” FIRE (March 31)
→ Joel Ready, “First Amendment rights during the Coronavirus,” YouTube (March 18)
Court denies cert. in government employee speech case
Earlier this week the Court denied cert. in Waronker v. Hempstead Union School District. The issues raised in that case according to SCOTUSblog were:
(1) Whether the First Amendment protects speech by a public official that is required by law and that reports and exposes corruption; and (2) whether speech by a public official reporting misconduct to external government officials, outside the chain of command, is protected by the First Amendment, as held by the U.S. Courts of Appeals for the 5th, 9th and 10th Circuits, or whether such speech is unprotected under Garcetti v. Ceballos as held by the U.S. Court of Appeals for the 2nd Circuit in this case and by the U.S. Courts of Appeals for the 6th and District of Columbia Circuits.
→ Helen Norton, “A commentary on Waronker v. Hempstead Union School Dist. and the public employee speech doctrine,” FAN (April 16)
New study: Trump is undermining press freedoms on a global scale
This from First Amendment Watch
A new report published by the Committee to Protect Journalists (CPJ) examines the impact of President Donald Trump’s attacks on the press and concludes that the president’s actions not only threaten democracy in the U.S., but also endanger press freedom across the globe.
“The Trump administration has stepped up prosecutions of news sources, interfered in the business of media owners, harassed journalists crossing U.S. borders, and empowered foreign leaders to restrict their own media,” the report says.
The CPJ report cites numerous attempts by Trump undermine the press including his recent defamation lawsuits against The New York Times, The Washington Post and CNN; his unsuccessful attempts to take away White House press credentials from two reporters; and his efforts to retaliate against Jeff Bezos, who owns the Post and Amazon, by attempting to interfere with regulations that affect his businesses. . . .
→ The report was written by Leonard Downie Jr., a former executive editor for The Washington Post.
- Anthony Fisher, “The Trump campaign’s frivolous lawsuits are next-level threats to the First Amendment,” Business Insider (April 17)
Forthcoming book on Masterpiece Cakeshop case
- Jack Phillips, “The cost of my faith: How a decision in my cake shop took me to the Supreme Court” (Salem Books, May 11, 2021). Abstract:
Master cake artist and a man of profound faith, Jack Phillips found himself in the middle of one of the highest-profile religious freedom cases of the century.
In July 2012, two men came to Jack Phillips’s shop requesting a custom wedding cake celebrating their same-sex marriage. In a brief exchange, Jack politely declined the request, explaining that he could not design cakes for same-sex weddings but offered to design cakes for other occasions and to sell them anything else in his shop.
Little did Jack know that his quiet stand for his Christian convictions about marriage would become a battle for the right of all Americans to live out their faith.
Now, Jack Phillips shares his harrowing experience for the first time in this powerful new memoir. The Cost of My Faith is Jack’s firsthand account from the frontlines of the battle with a culture that is making every effort to remove God from the public square and a government denying Bible-believing Christians the right to freely exercise their religious beliefs.
Despite a Supreme Court victory in Masterpiece Cakeshop v. Colorado Civil Rights Commission, the fight to protect the right of Americans to freely exercise their beliefs is more critical than ever. The Cost of My Faith provides new insight into the case that shook the country and offers readers courage and inspiration to stand and live out their faith when facing their own battles.
Forthcoming book by media lawyer
- Ian Rosenberg, “The fight for free speech: Ten cases that define our First Amendment freedoms” (New York University Press, Feb. 9, 2021). Abstract:
A user’s guide to understanding contemporary free speech issues and the ten key Supreme Court cases that define our First Amendment freedoms today[.]
Americans today are confronted by a barrage of questions relating to their free speech freedoms. What are libel laws, and do they need to be changed to stop the press from lying? Does Colin Kaepernick have the right to take a knee? Can Saturday Night Live be punished for parody? While citizens are grappling with these questions, they generally have nowhere to turn to learn about the extent of their First Amendment rights.
The Fight for Free Speech answers this call with an accessible, engaging user’s guide to free speech. Media lawyer Ian Rosenberg distills the spectrum of free speech law down to ten critical issues. Each chapter in this book focuses on a contemporary free speech question―from student walkouts for gun safety to Samantha Bee’s expletives, from Nazis marching in Charlottesville to the muting of adult film star Stormy Daniels― and then identifies, unpacks, and explains the key Supreme Court case that provides the answers. Together these fascinating stories create a practical framework for understanding where our free speech protections originated and how they can develop in the future. As people on all sides of the political spectrum are demanding their right to speak and be heard, The Fight for Free Speech is a handbook for combating authoritarianism, protecting our democracy, and bringing an understanding of free speech law to all.
New scholarly article on thought crimes
- Gabriel Mendlow, “Thoughts, crimes, and thought crimes,” Michigan Law Review (2020). Abstract:
Thought crimes are the stuff of dystopian fiction, not contemporary law. Or so we’re told. Yet our criminal legal system may in a sense punish thought regularly, even as our existing criminal theory lacks the resources to recognize this state of affairs for what it is—or to explain what might be wrong with it.
The beginning of wisdom lies in the seeming rhetorical excesses of those who complain that certain terrorism and hate crime laws punish offenders for their malevolent intentions while purporting to punish them for their con- duct. Behind this too-easily-written-off complaint is a half-buried precept of criminal jurisprudence, one that this Essay aims to excavate, elaborate, and defend: that the proper target of an offender’s punishment is always the crim- inal action itself, not the offender’s associated mental state conceived as a separate wrong.
Taken seriously, this precept would change how we punish an assortment of criminal offenses, from attempts to hate crimes to terrorism. It also would change how we conceive the criminal law’s core axioms, especially the poorly understood but surprisingly important doctrine of concurrence.
- Eugene Volokh, “Students don’t ‘shed their … freedom of speech … at the schoolhouse gate’” (April 18)
- Eugene Volokh, “D.C. high court strikes down order temporarily blocking Facebook from disclosing existence of subpoena” (April 17)
- Eugene Volokh, “‘I suppose you legally have a right not to give your ID [to police]’” (April 17)
- Eugene Volokh, “Five years in prison for posting Facebook videos accusing pastor of sexual misconduct” (April 17)
- Eugene Volokh, “Race-based speech restrictions” (April 16)
So To Speak podcast
- Ep. 109 “Censorship pandemic”. Description:
For authoritarian leaders across the globe, the coronavirus emergency presents an opportunity to silence critics and consolidate power.
On today’s episode of So to Speak: The Free Speech Podcast, host Nico Perrino is joined by international free expression experts Jacob Mchangama and Sarah McLaughlin to discuss how countries like Turkey, Hungary, Egypt, and Thailand are banning “fake news” amidst the pandemic — but, in doing so, are making the crisis worse.
Mchangama is the executive director of Justitia, a Copenhagen-based think tank focused on human rights and the rule of law. He is also the host and producer of the podcast Clear and Present Danger: A History of Free Speech. McLaughlin is the director of Targeted Advocacy at FIRE.
- “Why protest sites and the border remain risky places to report,” First Amendment Watch (April 21)
- “Twitter removes more InfoWars-affiliated accounts,” First Amendment Watch (April 21)
- Igor Derysh, “Fox News defends its COVID lies, saying First Amendment protects ‘false’ speech,” Salon (April 16)
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) [soliciting unlawful action / overbreadth]
- Carney v. Adams (TBD) [standing / judicial elections]
- United States Agency for International Development v. Alliance for Open Society International Inc. (May 5) [federal funding / compelled speech]
- Barr v. American Association of Political Consultants, Inc. (May 6) [automated-call restriction]
- Chiafalo v. Washington (consolidated w/ Colorado Department of State v. Baca) (May 13) [elections]
- Fulton v. City of Philadelphia (TBD) [religious expression: free exercise & free speech claims]
- Evans v. Sandy City, Utah
- Bruni v. City of Pittsburgh
- Waggy v. United States
- 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
- 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
- Waronker v. Hempstead Union School District
- Mckesson v. Doe
- 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
- 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 scheduled FAN