Coming soon: Ronald Collins & David Hudson, “The Roberts Court: It’s First Amendment Free Expression Jurisprudence — 2005-2020”
“We want to meet this moment.” — The Chicks
Despite what lawyers and scholars say, the First Amendment is more than black-letter law — it is a way of life. It is a culture — a way of thinking and acting. It is what people do with that freedom set out in the 45 words of the First Amendment. It is everything from the 1968 Olympics Black Power salute to Dave Chappelle’s unrepentant comedy to protest art to Lawrence Ferlinghetti’s insurgent poetry to John Wojnowski’s decades of protest in front of the Vatican embassy in Washington, D.C.
There is the law of free speech and there is the culture of free speech. That includes popular culture. And by that measure, the culture is changing as evidenced by a new song by The Chicks — “March March.”
You may have known them as “The Dixie Chicks,” that Dallas country-pop band with Natalie Maines as lead singer with sisters Martie Erwin Maguire and Emily Strayer on instrumentals. And you may recall the public stir they created when shortly before the 2003 invasion of Iraq when Maines told an audience that the band opposed the war and was “ashamed” of President Bush being a Texan. It cost them; they were blacklisted in many circles. But they survived.
Six days ago the band changed its name to The Chicks, dropping “Dixie” because of its association with slavery.
The music video of their latest song, “March March”, opens with a quote: “If your voice held no power, they wouldn’t try to silence you.” And then, replete with a montage of protest, the lyrics begin with these words: “March, march to my own drum/ Hey, hey, I’m an army of one.” (The song is from their forthcoming album: Gaslighter, to be released on July 17.)
Court hands down 5-3 First Amendment coverage ruling
On Monday, the Roberts Court handed down its 55th First Amendment freedom of expression opinion in United States Agency for International Development v. Alliance for Open Society International Inc.
The issue in the case was whether the First Amendment further bars enforcement of a directive with respect to legally distinct foreign entities operating overseas that are affiliated with respondents. The Court, by a 5-3 margin, held that the enforcement of a law requiring foreign affiliates of domestic groups receiving funds to fight HIV/AIDS to have a policy opposing prostitution and sex trafficking did not violate the First Amendment.
Majority opinion: Justice Kavanaugh (joined by Roberts, Thomas, Alito, and Gorsuch) argued that the First Amendment is inapplicable to foreign entities.
Concurring opinion: Justice Thomas argued there was no compelled speech.
Dissenting opinion: Justice Breyer (joined by Ginsburg and Sotomayor) (Kagan did not participate): “This case is not about the First Amendment rights of foreign organizations. It is about—and has always been about—the First Amendment rights of American organizations.”
Significant passages from the majority opinion
- “As foreign organizations operating abroad, plaintiffs’ foreign affiliates possess no rights under the First Amendment.”
- “Plaintiffs are free to choose whether to affiliate with foreign organizations and are free to disclaim agreement with the foreign affiliates’ required statement of policy. Any alleged misattribution in this case and any effect on the American organizations’ message of neutrality toward prostitution stems from their choice to affiliate with foreign organizations, not from U. S. Government compulsion. Because the First Amendment misattribution cases are premised on government compulsion to associate with another entity, those cases do not apply here.”
- “We appreciate that plaintiffs would prefer to affiliate with foreign organizations that do not oppose prostitution. But Congress required foreign organizations to oppose prostitution in return for American funding. And plaintiffs cannot export their own First Amendment rights to shield foreign organizations from Congress’s funding conditions.”
- “Foreign organizations operating abroad do not possess rights under the U. S. Constitution. Plaintiffs’ carve-out not only would deviate from that fundamental principle, but also would enmesh the courts in difficult line-drawing exercises — how closely identified is close enough? — and leave courts without any principled basis for making those judgments. We discern no good reason to invent a new and legally unmoored exception to longstanding principles of American constitutional and corporate law.”
Significant passages from the dissenting opinion
- “[I]n the First Amendment context, the corporate veil is not an iron curtain.”
- “In Agency for Int’l Development v. Alliance for Open Society Int’l, Inc., 570 U. S. 205 (2013) (AOSI I ), we held that the First Amendment forbids the Government from distorting their speech by requiring, as a condition of receiving federal funds, that they “pledge allegiance” to a state-sponsored message. […] This time, the question is whether the American organizations enjoy that same constitutional protection against government-compelled distortion when they speak through clearly identified affiliates that have been incorporated overseas. The answer to that question, as I see it, is yes.”
- “Properly understood, our speech-misattribution cases — in particular Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557 (1995) — confirm that common-sense conclusion. Any other result would undermine First Amendment protections for the countless American speakers who address audiences overseas.”
- “The First Amendment question therefore hinges, as it did before, on what an objective observer sees, hears, and understands when respondents speak through their foreign affiliates. As to that, not even the Government meaningfully disputes that respondents and their foreign affiliates are clearly identified with one another. Their appearances are the same. Their goals are the same. Their values are the same. Their message is the same.”
- “This two-entities-one-speaker principle is an established part of our First Amendment jurisprudence.”
- “The critical question here, as in Hurley, is simply whether the Government has demanded a profession of belief that will distort the speaker’s message. How the Government causes that distortion makes no constitutional difference. And as explained, enforcing the Policy Requirement against respondents’ clearly identified foreign affiliates would plainly distort respondents’ message. . . . If the Government commandeered CNN’s clearly identified foreign affiliate in these or similar ways, whether by monetary pressure or some other means, CNN should have constitutional recourse.”
Judge temporarily blocks publication of book by Trump’s niece
This from Michael Kranish for The Washington Post:
A New York judge on Tuesday temporarily blocked the publication of Mary L. Trump’s scathing book about her uncle, President Trump, which describes him as the “world’s most dangerous man,” saying no copies can be distributed until he hears arguments in the case.
The order leaves it uncertain whether the book will be published as scheduled on July 28.
Judge Hal B. Greenwald ordered a hearing next month on a request for an injunction by Trump’s brother Robert, who has argued that Mary Trump is not allowed to publish anything about her family as part of a settlement in an inheritance case. . . .
Mary Trump’s attorney, Theodore Boutrous Jr., said in a statement that while the judge’s order is temporary, “it still is a prior restraint on core political speech that flatly violates the First Amendment. We will immediately appeal. This book, which addresses matters of great public concern and importance about a sitting president in an election year, should not be suppressed even for one day.”
Simon & Schuster said it also plans to appeal.
Calif. law barring online posting of performers’ ages, birth dates struck down
This from David Hudson over at The Free Speech Center:
A California measure that prohibits websites from publishing the ages and dates of birth of professional entertainers violates the First Amendment, a federal appeals court panel has ruled. […]
[In IMDb.com, Inc. v. Becerra, the] 9th Circuit panel found that the law regulated speech on the basis of content and, as such, is subject to strict scrutiny – the highest form of judicial review. The state and SAG argued that the law merely regulated contractual obligations between IMDbPro and its subscribers. But the panel focused its attention on the part of the law that required IMDb to remove the ages and dates of birth from its publicly accessible companion website, IMDb.com.
“The statute does not restrict only information misappropriated through the parties’ contractual relationship,” the panel explained. “It also prohibits the publication of information submitted by members of the public with no connection to IMDb.”
The state and SAG also argued against the application of strict scrutiny because the speech in question was (1) commercial speech; (2) illegal speech; or (3) speech on private matters.
The 9th Circuit rejected each of these arguments. Commercial speech is speech that does no more than propose a commercial transaction. The speech on IMDb does not fit that definition and encompasses much expression that is not related at all to a commercial transaction.
“The content is encyclopedic, not transactional,” the panel said.
First Amendment Watch: ‘Citizen’s Guide to Recording the Police’
The release of First Amendment Watch’s Citizen’s Guide to Recording the Police has been getting more and more attention. Recently, Washington Post media columnist Margaret Sullivan wrote:
This week, New York University’s First Amendment Watch released “A Citizen’s Guide to Recording the Police” a primer for amateur videographers on the rights they are entitled to in these encounters. The guide explains why, under most circumstances, the police can neither seize nor demand to view such recordings — though some may try — and it provides case-law examples to back up its assertions.
It comes along at a crucial time.
“In this new era, we have armies of citizens out on the streets capable of producing evidence that checks the conduct of public officials,” said Stephen D. Solomon, the organization’s founding editor. The First Amendment right to record public officials, such as the police performing their official duties in public, is central to our democracy, he said. […]
The NYU guide cites a 2012 U.S. Court of Appeals for the 7th Circuit decision that drew a direct connection between the creation of a recording and something that’s better understood to be constitutionally protected: the publication or dissemination of a recording.
“The right to publish or broadcast an audio or audiovisual recording would be insecure, or largely ineffective,” the decision in ACLU v. Alvarez stated, if making the recording were unprotected. “Restricting the use of [a recording] device suppresses speech just as effectively as restricting the dissemination of the resulting recording.”
David Super on masks and rights talk
This from Professor David Super over at Balkinization:
I am struck right-wing protesters’ repeated, adamant insistence that mask-wearing requirements violate the Bill of Rights. The (utterly unfounded) claims that it is unnecessary and the (abjectly paranoid) assertions of an elite conspiracy to promote masks are sadly pretty ordinary in today’s political environment. But the normative “rights talk”, and the attempt to ground it in a conception of constitutional law, seems different and worthy of more attention. I remain completely unpersuaded that mask requirements offend any basic rights. But as someone interested in popular constitutionalism, I feel the need to unpack this specific invocation of the Bill of Rights. What could it mean?
Wearing a mask does not take away anyone’s gun, does not quarter any soldiers, and does not search or seize anything. Mask requirements change nothing about how crimes are investigated, prosecuted, or punished. They have nothing to do with the conduct of civil trials. Perhaps someone could try to invoke the Tenth Amendment against federal mask requirements, but virtually all come from state or local governments or from private entities such as stores or universities.
That leaves us with the First and Ninth Amendments (and that part of the Tenth Amendment that “reserve[s powers] to the people”). Thinking about mask requirements in connection with each is revealing.
Many opponents apparently see wearing a mask as an expressive act, implying that they take seriously a pandemic that they regard as a liberal hoax. The functional and expressive aspects of mask-wearing, however, can readily be separated. Masks can declare support for President Trump or other conservative causes, much as one can tape over offensive slogans on license plates.
A prominent example of expressive conduct that is protected because it need not have any functional side is flag–burning. Yet President Trump, whom many of the protesters regard as their leader, has demanded renewed criminal penalties for burning the flag.
Where expressive conduct is more difficult to separate from the government’s functional needs, as in the case of burning draft-cards, current First Amendment doctrine has been more amenable to regulation. Are anti-mask protesters rejecting these decisions and insisting on a more absolutist protection of expressive conduct, even where it has serious real-world adverse consequences? If so, what does that say about civil rights protesters pulling down white supremacists’ monuments? Few of those monuments’ monetary value to the state approaches that of the hospitalizations, and potential life-long need for disability benefits, resulting from rampant spread of COVID-19. The state may have sentimental or ideological investment in those statues, but it surely has much stronger interests in the well-being of its people.
- Lindsay F. Wiley & Stephen I. Vladeck, “Coronavirus, Civil Liberties, and the Courts: The Case Against ‘Suspending’ Judicial Review,” Harvard Law Review Forum (2020)
Recent book: ‘Censorship and Propaganda in World War I’
Eberhard Demm, “Censorship and Propaganda in World War I: A Comprehensive History” (Bloomsbury Academic, 2019)
This book demonstrates how people were kept ignorant by censorship and indoctrinated by propaganda. Censorship suppressed all information that criticized the army and government, that might trouble the population or weaken its morale. Propaganda at home emphasized the superiority of the fatherland, explained setbacks by blaming scapegoats, vilified and ridiculed the enemy, warned of the disastrous consequences of defeat and extolled duty and sacrifice.
The propaganda message also infiltrated entertainment and the visual arts. Abroad it aimed to demoralize enemy troops and stir up unrest among national minorities and other marginalized groups.
The many illustrations and organograms provide a clear visual demonstration of Demm’s argument.
Forthcoming handbook on First Amendment freedoms
- Michael C. LeMay & Alemayehu G. Mariam, “First Amendment Freedoms: A Reference Handbook” (ABC-CLIO, October 31, 2020)
NOMOS Symposium: ‘Protest and Dissent’
The current issue of NOMOS consists of a symposium on NOMOS symposium on “Protest and Dissent.” The symposium is edited by Professor Melissa Schwartzberg.
In “Protest and Dissent,” the latest installment of the NOMOS series, distinguished scholars from the fields of political science, law, and philosophy provide a fresh, interdisciplinary perspective on the potential—and limits—of mass protest and disobedience in today’s age.
Featuring ten timely essays, the contributors address a number of contemporary movements, from Black Lives Matter and the Women’s March, to Occupy Wall Street and Standing Rock. Ultimately, this volume challenges us to re-imagine the boundaries between civil and uncivil disagreement, political reform and radical transformation, and democratic ends and means.
Protest and Dissent offers thought-provoking insights into a new era of political resistance.
- Candice Delmas, “Uncivil Disobedience”
- Juliet Hooker, “Disobedience in Black: On Race & Dissent
- Amna Akbar, “TheRadical Possibilities of Dissent”
- Karuna Mantena, “Competing Theories of Nonviolent Politics”
- Jose Medina, “No Justice, No Peace: Uncivil Protest and the Politics of Confrontation”
- Richard Thompson Ford, “Protest Fatigue”
- Susan J. Brison, “‘No Ways Tired’: An Antidote for Protest Fatigue in the Trump Era”
- Tabatha Abu El-Haj, “Defining Nonviolence as a Matter of Law and Politics”
- John Medearis, “On the Strike and Protest,”
- Susan Stokes, “Are Protests Good or Bad for Democracy?”
New scholarly article on ‘City Speech’
- Yishai Blank, “City Speech,” Harvard Civil Rights-Civil Liberties Law Review (2020)
Cities speak. A rich array of expressive activities, city speech, surrounds us. Cities topple confederate monuments, fly LGBT pride flags on City Hall, erect monuments commemorating victims of sexual violence, and issue statements that oppose the policies of state and federal governments. They disseminate information concerning climate change, hydraulic fracking, and the impact of minimum wage on poorer populations. They participate in statewide ballot initiatives, and they hire lobbyists to advocate for litigation. But cities have to obtain permission from states to do these things, and increasingly, they are being silenced. In our era of political polarization, states have become hostile to local policymaking, and thus have begun to employ measures to prohibit a variety of expressive activities by cities.City speech embodies the values of localism, of the First Amendment, and of federalism. It promotes democratic self-government, policy experimentation and innovation, representation of minority views, and economic efficiency and redistribution. It also promotes the ongoing search for truth and the flourishing of an open marketplace of ideas. Cities are structured, legally and politically, to excel at speech. They are separately and democratically elected institutions that function as frontline posts for policymaking, regularly facing economic, social, environmental, and political challenges. As relatively small, nimble, and responsive entities, cities are thus well placed to stir democratic civic engagement in politics. Cities are diverse in their social, economic, religious, ethnic, racial, and political composition, hence their plural expressions reflect the diverse nature of our nation better than other levels of government. These values are threatened by the silencing measures recently adopted by many states.
This Article proposes that city speech should enjoy the constitutional protection of the First Amendment. Such protection is necessary for the values of city speech to withstand state-led threats. In contrast to one traditional view of cities as creatures of the state, this Article argues that there is a doctrinal path for the recognition of city speech as a constitutional and organizational right. Cities are hybrid creatures of government and corporation. Legal doctrine has long viewed them as constitutional property right-bearers but has denied them a variety of government privileges. Simultaneously, corporations have gained a far-reaching recognition of their right to speak. And while the government speech doctrine protects various municipal expressions against private dissenters, it leaves cities unarmed against silencing measures by their own states. Giving our cities free speech rights is not only doctrinally consistent and normatively justified; it has become necessary in order to protect the democratic vitality our cities symbolize.
- Leah Nylen, “Justice Department expected to file antitrust suit against Google,” Politico (June 26)
- Oliver Darcy, “Court dismisses motion by Trump’s brother to block tell-all book by President’s niece,” CNN Business (June 25)
- Christiano Lima, “Cruz joins alternative social media site Parler in swipe at big tech platforms,” Politico (June 25)
2019–2020 SCOTUS term: free expression & related cases
Opinions or judgments handed down
- United States Agency for International Development v. Alliance for Open Society International Inc.
- Thompson v. Hebdon (per curiam with Ginsburg, J., statement concurring in remand)
- United States v. Sineneng-Smith (decided on non-First Amendment grounds)
- 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.(argued May 5) (federal funding/compelled speech)
- Barr v. American Association of Political Consultants, Inc. (argued May 6) (automated-call restriction)
- Chiafalo v. Washington (consolidated w/ Colorado Department of State v. Baca) (argued May 13) (elections)
- Fulton v. City of Philadelphia (TBD) (religious expression: free exercise & free speech claims)
- Hunt v. Board of Regents of the University of New Mexico
- Bright v. Thomas
- Living Essentials, LLC v. Washington
- Evans v. Sandy City, Utah
- Bruni v. City of Pittsburgh
- Austin v. Illinois
- Mckesson v. Doe
- Reisman v. Associated Faculties of the University of Maine
- Institute for Free Speech v. Becerra
- Americans for Prosperity Foundation v. Becerra
- Thomas More Law Center v. Becerra
- Facebook, Inc. v. Duguid
- Arlene’s Flowers Inc. v. Washington
- Charter Communications, Inc. v. Gallion
- Price v. City of Chicago, Illinois
- Kansas v. Boettger (Thomas, J., dissenting from denial of cert.)
- Waggy v. United States
- Jarchow v. State Bar of Wisconsin
- National Association for Gun Rights, Inc. v. Mangan
- Schmitt v. LaRose
- Vugo Inc. v. City of New York, New York
- Waronker v. Hempstead Union School District
- 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
- National Association of Broadcasters v. Prometheus Radio Project (re Section 202(h) of the Telecommunications Act of 1996)
- Federal Communications Commission v. Prometheus Radio Project (re FCC cross-ownership restrictions)
- Uzuegbunam & Bradford v. Preczewski, et al (nominal damages and mootness in campus speech context)
First Amendment related: cert. denied
- Force v. Facebook Inc. (interpretation of Section 230(c)(1))
- Olivas-Motta v. Barr (void for vagueness, “moral turpitude”)
- Dyroff v. Ultimate Software Group Inc. (interpretation of Section 230(c)(1))
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