First Amendment News

Hans Linde (Willamette University)

First Amendment News 270: Justice Hans Linde (1924-2020) on freedom of expression: An ingenious jurisprudence

September 9, 2020

“Hans Linde was one of the giants of the American judiciary.”

— Laurence Tribe (09-03-20)

“Hans Linde was an iconoclastic, original thinker.”

— Chief Judge Robert Katzmann (09-02-20)

Oregon’s most distinguished jurist, for whom I once clerked (1980-81), died last week. Hans Arthur Linde was 96. By all measures, he was an original thinker, a brilliant jurist, and one who cared deeply about law, the structure and operation of government, and about civil rights and liberties.

Linde, a Jewish immigrant born in Berlin, valued freedom in ways that perhaps only an immigrant can. He was serious about it as a law student at the University of California Law School, as a law clerk to Justice William O. Douglas (when Dennis v. U.S. was decided), as an attorney in the U.S. State Department, as a legislative assistant to Oregon Senator Richard L. Neuberger, as a  University of Oregon law professor, as an Associate Justice on the Oregon Supreme Court, and as a legal scholar. He was old-fashioned: he wrote all his opinions and did so on a manual Underwood typewriter.

Linde had little patience for drama, partisan ideology, legal catchphrases, spurious legal balancing, cut-and-paste legal opinions, or robotic allegiance to precedents devoid of jurisprudential worth. The logic of the law mattered to him along with its real-world impact on people’s lives (see, e.g., his dissent in State v. Wagner II, a 1990 death penalty case).

While the legislative and administrative processes were the object of much of his scholarly attention, he was best known for his state constitutional jurisprudence. In 1985, Jeffrey Toobin tagged him the “intellectual godfather of the new judicial federalism,” this owing to Linde’s development of state constitutional law in the civil liberties context.

As evidenced by the selections below, an important tenet of Linde’s jurisprudence involved freedom of speech under the state and federal constitutions.

State court opinions 

Scholarly articles

Newspaper op-ed

Amicus brief (prior to becoming a judge)

  • Amicus Curiae Brief for Oregon Newspapers Association, Deras v. Myers (Or. 1975)

Related

Forthcoming

Knight Institute lawyer on future of Trump Twitter case

First Amendment Watch logo
On July 11, 2017, the Knight First Amendment Institute at Columbia University filed a complaint against President Donald Trump for blocking seven critics from his Twitter account, @realDonaldTrump.

The high-profile lawsuit drew attention to new legal questions arising from the popular use of social media. Though Trump’s account was technically personal, the Knight Institute argued that Trump overwhelmingly used it for official communication such as announcing policy decisions, and describing meetings with foreign leaders. In doing so, Knight postulated, Trump had opened a public forum, and as such, any attempt to block critics was an act of government censorship.

Multiple courts have ruled in favor of Knight, and have ordered Trump to unblock people from his account. Despite wide court consensus, the President has insisted he has a right to exclude certain users from his account, so much that he recently petitioned the United States Supreme Court to rehear the case.

First Amendment Watch staff writer Soraya Ferdman spoke to Meenakshi Krishnan, a legal fellow at the Knight First Amendment Institute, about the petition. One of the attorneys working on the case, Krishnan explains why she thinks many of Trump’s arguments are likely to fail should the case come before the Supreme Court.

Texas court upholds ‘Invasive Visual Recording’ law

This from David L. Hudson over at the Free Speech Center:

Texas’s “Invasive Visual Recording” law, which prohibits taking pictures or videotaping intimate areas of another person without consent if there is a reasonable expectation of privacy, does not violate the First Amendment, a Texas appeals court has ruled.

Robert Metzger was indicted for violating the law on multiple occasions.  He allegedly took pictures of a person known in court papers as “N.M.” changing in a bathroom, and allegedly also transmitted visual images of N.M.’s intimate areas. . . .

Metzger argued that imposing criminal penalties on photography and transmission of visual images violates the First Amendment. The state of Texas countered that the law did not violate the First Amendment, because the restrictions on photographing and transmitting images applied only to those activities that invaded substantial privacy interests.  The state also contended that such activities should be considered a new unprotected category of speech. . .

Because the law was deemed content-based, the state had the burden to show that the law furthered a compelling government interest in a narrowly tailored way. The court accepted the state’s compelling interest in protecting the personal privacy and security of individuals.

The appeals court also found that the law was narrowly tailored, explaining that “the statutory curtailment of protected photography and transmission of visual images in those sections of the statute is no broader than necessary to prevent the substantial harms the State has a compelling interest in preventing and therefore survives strict scrutiny.”

Seventh Circuit denies preliminary injunction in coronavirus case

Upcoming event: John Roberts and free speech

Chief Justice John RobertsChief Justice John Roberts
Featuring study authors Ronald Collins, Harold S. Shefelman Scholar (retired), University of Washington School of Law; and David L. Hudson Jr., Assistant Professor, Belmont University College of Law; with comments by Robert Corn‐​Revere, Partner, Davis Wright Tremaine, and Adjunct Scholar, Cato Institute; and Lyrissa Lidsky (@LidskyLidsky), Dean and Judge C. A. Leedy Professor of Law, University of Missouri; moderated by Ilya Shapiro (@ishapiro), Director, Robert A. Levy Center for Constitutional Studies, Cato Institute.

“I’m probably the most aggressive defender of the First Amendment. Most people might think that doesn’t quite fit with my jurisprudence in other areas. . . . People need to know that we’re not doing politics. We’re doing something different. We’re applying the law.”

                                                      —Chief Justice John Roberts

More than any other Supreme Court justice in recent history, John Roberts has played a defining role in shaping the contours of our free‐​speech law. He’s written more than twice as many majority opinions in this area than any of his colleagues, which gives his jurisprudence staying power. There’s a certain resolve, at once philosophical and tactical, at work here. In 95 percent of the free‐​expression cases decided during his 15‐​year tenure, Roberts has been in the majority. Equally revealing, Roberts has taken the lead opinion nearly 30 percent of the time. In other words, there’s something special about this genre of cases, something that speaks to who Roberts is and what he hopes the Court bearing his name might be remembered for. In the first comprehensive report on the Roberts Court’s free‐​speech jurisprudence, Ronald Collins and David Hudson—each of whom has published more than 10 books on free speech—examine the 56 such cases handed down by the Roberts Court from 2005 through 2020. Beyond its focus on Chief Justice Roberts, the authors’ eye‐​opening study provides a detailed look at the cases, the justices’ differing approaches, and lawyers who have played key roles in influencing the Court.

Register here (it’s free.)

Upcoming event: Panel to discuss ‘Racial Justice and First Amendment’

Racial Justice and First Amendment panel flyer

Register for the event. The panel will discuss the evolving racial justice protests across the country in the context of U.S. history and the First Amendment.

A scholar in African American history, a journalist on the front lines of covering the Portland protests and a First Amendment expert will discuss the racial justice protests across the country at a program at Middle Tennessee State University as part of Constitution Week.

“Racial Justice Protests and the First Amendment” will be held in a Zoom virtual event at 2:30 p.m. Sept. 16. It is presented by the John Seigenthaler Chair of Excellence in First Amendment Studies and the Free Speech Center, both part of the College of Media and Entertainment at MTSU.

The panelists include:

  • Ashley Howard, an assistant professor of African American history at the University of Iowa.  Her book manuscript analyzes the 1960s urban rebellions in the Midwest, grounded in the way race, class, gender, and region played critical and overlapping roles in defining resistance to racialized oppression.  Dr. Howard’s scholarship has been featured in The Chronicle of Higher Education, BBC Mundo, Al Jazeera, Associated Press, TIME magazine and NPR.
  • Ryan Haas, news editor with Oregon Public Broadcasting. Haas has led a team of reporters earlier this year in breaking the news that the federal government had deployed massive forces to Portland, Oregon, to quash Black Lives Matter protests. His work has been nominated for two National Magazine Awards in recent years and has often focused on anti-government extremism and unrest in the American West.
  • Ken Paulson, director of the Free Speech Center and a professor in the Recording Industry Department at Middle Tennessee State University. He is also the former dean of MTSU’s College of Media and Entertainment. He is also the former editor-in-chief of USA TODAY and remains a columnist on USA TODAY’s board of contributors, writing about media and First Amendment issues.
  • Keonte Coleman, an assistant professor in the school of Journalism and Strategic Media at MTSU will moderate.

You may register in advance for the webinar (and receive reminders with information before the event) or simply join the webinar when it begins.

Forthcoming book on free speech on campuses 

Prof. Joseph RussomannoProf. Joseph Russomanno

Traditionally, the university or college is thought to be the ultimate location for the discovery and sharing of knowledge. After all, on these campuses are some of the great minds across all fields, as well as students who are not only eager to learn, but who often contribute to our shared wisdom. For those ideals to be achieved, however, ideas require access to some kind of virtual marketplace from which people can sample and consider them, discuss and debate them. Restricting the expression of those ideas for whatever reason is the enemy of not only this process, but also of knowledge discovery. Speech freedom on our college and university campuses, like everywhere else, is fragile.

There are those who wish to suppress it, more often than not when the words express ideas, opinions, and even facts that conflict with their beliefs. Why does an effort so completely at odds with the foundational values of this country happen? This topic explored in Speech Freedom on Campus: Past, Present and Future is multi-layered, and its analysis is best accomplished through multiple perspectives. Joseph Russomanno’s edited collection does precisely that, utilizing 10 different scholars to examine various aspects and issues related to speech freedom on campus.

Forthcoming scholarly article on fighting words

Prof. Etienne C. ToussaintProf. Etienne C. Toussaint
The resurgence of worldwide protests by activists of the Movement for Black Lives (BLM) has ushered a global reckoning with the meaning of this generation’s rallying cry – “Black Lives Matter.” As citizens emblazon their streets with this expression in massive artistic murals, the Trump administration has responded with the militarized policing of non-violent public demonstrations, revealing not merely a disregard for public safety, but far worse, a concerted dismantling of protestors’ First Amendment rights. Nevertheless, BLM protests have persisted. Accordingly, this Essay considers the implications of this generation’s acclamation of Black humanity amidst the social tensions exposed during the era of COVID-19. What does the Trump administration’s militarized response to BLM protests mean in a world mutilated by the scars of racial oppression, a wound laid bare by America’s racially biased, aggressive, and supervisory culture of policing?

In response, much in the way Cheryl Harris revealed Whiteness as Property, this Essay suggests and defends Black identity itself, or Blackness – whether articulated by the pure speech of racial justice activists who affirm Black humanity, or embodied by the symbolic speech of Black bodies assembled in collective dissent in the public square – as “fighting words” in the consciousness of America, a type of public speech unprotected by the Constitution. The very utterance of the phrase “Black Lives Matter” tends to incite imminent violence and unbridled rage from police in city streets across America. Discussions of “Black Lives Matter” by pundits conjure images of subversion, disorder, and looting, the racialized narratives of social unrest commonly portrayed by the media. Yet, the words “Black Lives Matter” and the peaceful assembly of Black protestors also encapsulate the fire of righteous indignation burning in the hearts of minoritized citizens. This dynamic reflects unresolved tensions in the First Amendment’s treatment of race relations in America. Even more, it exposes the role of policing in smothering the Constitutional rights of Black and Brown citizens.

This Essay provides three contributions to the ongoing discourse on policing in the United States. First, it reveals how unresolved racial tensions in the First Amendment – focusing specifically on ambiguities in the fighting words doctrine – perpetuate the racially biased, aggressive, and supervisory culture of American policing. Second, it analyzes how such unresolved racial tensions cast a dark shadow over the liberty of Black and Brown citizens who experience racism at the hands of police officers, yet avoid acts of protest for fear of bodily harm or arrest. Third, it illuminates the embeddedness of racism in American policing culture, more generally; a culture that not only constructs and reconstitutes the racial social order, but also degrades the dignity of Black and Brown citizens. Collectively, these insights lend support toward demands for police abolition from BLM activists. As this Essay concludes, until we as a nation wrestle with the unresolved racial subtext of modern policing – a racist culture woven into law that not only silences the legitimate protests of minoritized citizens in violation of their First Amendment rights, but also rationalizes callous violence at the hands of law enforcement – Black America will remain a peril to the veil of white supremacy that looms over the American constitutional order.

UT Law launches First Amendment clinic

This from UT News:

The School of Law at The University of Texas at Austin is opening the Bech-Loughlin First Amendment Center, which will be dedicated to advancing the discussion, education and scholarship of the First Amendment.

Among the center’s main projects will be a new experiential education opportunity, the Law and Religion Clinic. It is the first clinic at a university in the state dedicated to representing clients in cases that involve challenges to their religious liberty and will allow students to learn about the parallels between the First Amendment and religion.

“We live in times when measured conversation between people with different viewpoints has often become difficult — sometimes even scarce,” said Ward Farnsworth, dean of the School of Law. “As the flagship public law school in a diverse state, I believe it’s important for us to show commitment and leadership on this issue.”

Students will serve as advocates for clients who would otherwise be unlikely to find representation. These include individuals denied benefits or opportunities because of their religious exercise or beliefs, religious institutions discriminated against in municipal land-use decisions, and individuals seeking to practice the tenets of their religion in restrictive environments, such as prison and educational settings.

“At a moment where our nation is divided on so many issues, our constitutional right to free speech is one of the most important tools we have to facilitate needed discussions, find common ground and continue making progress, together,” said UT Austin interim President Jay Hartzell. “The First Amendment Center will provide incredible experiential learning opportunities for UT law students while helping serve Texans in need of legal counsel and representation.”

The center opens immediately, and the clinic will be offered to students during the spring 2021 semester. The center is named for Doug Bech, J.D. ’70, and Samuel Loughlin, J.D. ’98, who have partnered to pledge an $8 million gift to endow the center’s activities and staff.

“Our First Freedoms of religion, speech, press and assembly are central to human flourishing, liberty and a healthy society in America and across the earth,” said Bech and Loughlin. “It is best secured through a civil public square where all discussion is respected equally in accordance with our rule of law. We believe that this Center and Clinic will provide UT’s law students with the educational foundation to protect and embrace these vital constitutional rights for all persons.”

YouTube

It’s a complicated and confusing time for the idea of free speech. On the one hand, tens of thousands of people have taken to the streets in recent weeks, exercising their rights to free speech in defense of justice, equality, and a more inclusive America. In some cases, however, they’ve been met with military-style police crackdowns. Meanwhile, hate speech and disinformation proliferate online about everything from covid-19 to the 2020 election. And while some might argue that there’s never been a wider variety of opinions in the ether, others argue that a culture of silencing or cancelling unpopular or offensive speech is threatening to narrow the boundaries of American discourse. Is there a middle ground in these divided times? Can we protect free thinking while promoting a more inclusive culture and protecting against the harms of speech? PEN America CEO Suzanne Nossel thinks we can. She joins Vivian Schiller, head of Aspen Digital, to talk about her new book Dare to Speak.

More in the news . . . and opinions 

2020-2021 SCOTUS term: Free expression & related cases

Cert. granted

Pending petitions

First Amendment-related 

Last scheduled FAN

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.