First Amendment News

First Amendment News 238: High Court to Hear Telephone Consumer Protection Act Robo Call Case

January 15, 2020

The Supreme Court Justices recently agreed to hear Barr v. American Association of Political Consultants, Inc. As stated on SCOTUSBlog, the issues raised in the case are: “[W]hether the government-debt exception to the Telephone Consumer Protection Act of 1991’s automated-call restriction violates the First Amendment and whether the proper remedy for any constitutional violation is to sever the exception from the remainder of the statute.”

Roman Martinez of Latham and Watkins is Counsel of Record for the Respondents.

The Relevant Law

The Telephone Consumer Protection Act of 1991 (TCPA) generally prohibits the use of any “automatic telephone dialing system or an artificial or prerecorded voice” to “make any call” to “any telephone number assigned to a . . . cellular telephone service.”  The TCPA excepts from that automated-call restriction any “call made for emergency purposes or made with the prior express consent of the called party.” In 2015, Congress amended the TCPA to create an additional exception for calls “made solely to collect a debt owed to or guaranteed by the United States.”

The First Amendment Challenge  

Respondents wish to use an automatic telephone dialing system or an artificial or prerecorded voice to make calls to the cell phones of potential or registered voters to solicit political donations and to advise on political and governmental issues.

The Fourth Circuit’s Ruling

[A three-judge panel of the Court of Appeals] held that the government-debt exception to the TCPA’s automated-call restriction violates the First Amendment. The court further held that the proper remedy was to sever the government-debt exception, leaving the basic automated-call restriction in place.

The Government’s Argument

In its petition for review, the Government declared: “In holding that the government-debt exception to the TCPA’s automated-call restriction violates the First Amendment, the court of appeals subjected the exception to strict scrutiny.  The court’s application of strict scrutiny was unwarranted. Under the appropriate level of scrutiny, the government-debt exception is constitutional.”

 See also Ruthann Robson, “SCOTUS Will Hear First Amendment Challenge to Federal Robo-Call Law,” Constitutional Law Prof Blog (Jan. 10, 2020)

Senate Restrictions on Impeachment Press Coverage

Again — Justice Department v. Apple

This from Business Insider:

  • Attorney General William Barr has criticized Apple as unhelpful in cracking the locked iPhones.
  • While Apple has provided the FBI with available records from the suspect’s iCloud account, it has long resisted federal pressure to engineer a “backdoor” that would let investigators easily unlock iPhones.
  • But according to experts, recent technological advancements have made it straightforward for law enforcement to crack iPhones without Apple’s help, at least for now.

The Department of Justice is in a stand-off with Apple over the effort to unlock iPhones owned by a suspected terrorist — but according to cybersecurity experts, it should be straightforward for federal agents to crack the iPhones, even without Apple’s cooperation.

Attorney General William Barr has repeatedly demanded that Apple help crack two iPhones belonging to Mohammed Alshamrani, but they are locked with unknown passwords. Alshamrani is charged with shooting and killing three people in a December attack on Naval Air Station Pensacola.

Apple has maintained that it has cooperated with federal agents. An Apple spokesperson told Business Insider that it had already provided iCloud backups, account information, and “transactional data” from Alshamrani’s accounts. The spokesperson said the FBI first notified Apple that it needed additional assistance on Jan. 6, and that Apple received a subpoena for information related to Alshamrani’s iPhones on Jan. 8, which it filled.

Related

The issues involved in the “Apple-FBI” iPhone controversy were argued Wednesday before a panel of First Amendment, cybersecurity, civil liberties and national security experts — and the verdict from audience members watching the mock Supreme Court session was split.

Audience members were asked to select the issue, after hearing oral arguments in the case “Pear v. United States”, and asked to vote on which issue would most likely be central to the dispute if the controversy reached the U.S. Supreme Court.

Moot Court from 2016 at Newseum

The mock Supreme Court argument was presented by the Newseum Institute as a means of exploring the increasingly complex issues around privacy and national security needs, said Gene Policinski, the Institute’s chief operating officer. . . .

Sitting as the Supreme Court were:

  • Floyd Abrams, renowned First Amendment lawyer and author; visiting lecturer at the Yale Law School (as the chief justice)
  • Harvey Rishikof, most recently dean of faculty at the National War College at the National Defense University; chair of the American Bar Association Standing Committee on Law and National Security advisory committee
  • Nadine Strossen, former president of the American Civil Liberties Union; the John Marshall Harlan II Professor of Law at New York Law School
  • Linda Greenhouse, Knight Distinguished Journalist in Residence and Joseph Goldstein Lecturer in Law at Yale Law School; longtime U.S. Supreme Court correspondent for The New York Times
  • Lee Levine, renowned media lawyer; adjunct professor of law at the Georgetown University Law Center
  • Stewart Baker, national security law and policy expert; former assistant secretary for policy at the U.S. Department of Homeland Security
  • Stephen Vladeck, professor of law at American University Washington College of Law; nationally recognized expert on the role of the federal courts in the war on terrorism
  • The Hon. Robert S. Lasnik, senior judge for the Western District of Washington at the U.S. District Court

Lawrence Lessig Sues New York Times for Defamation

Prof. Lawrence Lessig

This from First Amendment Watch:

Harvard Law Professor Lawrence Lessig is suing The New York Times for defamation.

In a complaint filed on January 13th in the U.S. District Court for the District of Massachusetts, Lessig alleges that the Times used a “false and defamatory ‘clickbait’ Internet headline and lede to drive readers to their story and web site.”

On September 14, 2019, the Times ran an article entitled, “A Harvard Professor Doubles Down: If You Take Epstein’s Money, Do It In Secret.” The article was written in the wake of the revelation that the Massachusetts Institute of Technology’s (MIT) Media Lab director, Joichi Ito, had knowingly accepted money from the late Jeffrey Epstein. The lede reads: “It is hard to defend soliciting donations from the convicted sex offender Jeffrey Epstein. But Lawrence Lessig, a Harvard Law professor, has been trying.”

In his suit, Lessig says the headline and the lede misrepresented what he had written in an essay published on Medium on September 8, 2019. “Defendants published their headline and lede despite their both being the exact opposite of what Lessig had written and despite being told expressly by Lessig pre-publication that they were contrary to what he had written. When Lessig brought the matter to Defendants attention post-publication, they refused to remove or edit their headline and lede to reflect the truth.”

Read the complaint. (Howard M. Cooper, attorney for Plaintiff)

Babson College Fires Professor Over Facebook Post Criticizing Trump Threat to Bomb Iran Cultural Sites

This from a post by Adam Steinbaugh over at FIRE:

At Babson College, the climate of freedom of expression feels like 2003 all over again. Today, the college announced its completion of a “thorough investigation” — which started yesterday — into an adjunct professor’s Facebook post. As a result of its investigation, the college has terminated the professor.

The professor’s post was a response to President Trump’s tweeted threat to target 52 Iranian sites, including cultural sites — a threat that drew criticism and eventual disavowal following commentary that the threat, if carried out, would constitute a war crime. Asheen Phansey, an adjunct professor and staff member at Babson College, posted on his personal Facebook page:


That drew the attention of a local gossip blog, which published screenshots of Phansey’s post, leading to critics on Twitter to call on the college to take action[.]

. . .
It strains credulity to read Phansey’s post as sincerely advocating violence. In political rhetoric, figurative and hyperbolic language have been familiar tools for centuries, and Phansey’s post is quite obviously a criticism — not endorsement — of threats of violence, mixed with snark about American culture. 

For argument’s sake, even after stripping Phansey’s post of its obvious intent, it still does not amount to unprotected speech. As we explained in a letter FIRE sent to Babson president Stephen Spinelli this afternoon, Phansey’s post simply cannot be characterized as either a “true threat” or “incitement,” which are not considered protected speech:

First, because the statement does not purport to commit Phansey to any action, it cannot amount to “a serious expression of an intent to commit an act of unlawful violence[.]” Virginia v. Black, 538 U.S. at 359. Second, the “particular . . . group of individuals” identified in Phansey’s post—the Kardashians and Mall of America—reveal the sardonic tone, depriving the post of the “serious” nature necessary to remove it from its default status as protected speech.

Second, Phansey’s post is better analyzed under the incitement standard, as it (if read literally, and deprived of its context) purports to call upon Iran to issue a threat to attack particular American cultural institutions in response to President Trump’s threat. Yet even if the post had sincerely encouraged Iran to attack the United States, “mere advocacy of the use of force or violence does not remove speech from the protection of the First Amendment.” Claiborne Hardware Co., 458 U.S. at 927 (emphasis in original). To amount to incitement, the speech would not only advocate unlawful force, but must also be “likely to incite or produce” imminent lawless action. Brandenburg, 395 U.S. at 447. Simply put, there is no reasonable likelihood that Phansey’s private post to his Facebook friends would lead to Iran threatening to bomb the Kardashians’ residence.

And while Babson College is a private institution, and thus not bound by the First Amendment, it does promise its faculty and students that Babson College will respect their freedom of expression. We know that from its faculty handbook, which adopts the AAUP’s 1940 Statement of Principles, under which extramural statements such as these are insufficient to justify terminating faculty members. We also know it from other statements in its student policies, on its website, and from our experience in defending conservative students who faced punishment for celebrating Trump’s 2016 election. In that case, Babson ultimately protected freedom of expression. But not this time.

Do Officials Who Block People on Social Media Violate the First Amendment? Pro & Con Arguments

In this piece for the Philadelphia Inquirer Devin Watkins (an attorney at the Competitive Enterprise Institute) defends the position that there is NO First Amendment violation when officials block accounts on social media. On the other side, Daniel Ortner (an attorney with Pacific Legal Foundation) argues that there IS a First Amendment violation. A version of this exchange first appeared at InsideSources.com

Related: On Jan. 22, the First Amendment Salon and the Floyd Abrams Institute will host an exchange between Jameel Jaffer and Noah Feldman in a program titled “Trump, Twitter & The First Amendment.” The exchange will be moderated by Francesca Procaccini. Though the New York and Washington, D.C., salons are by invitation only, they are video recorded and subsequently posted here.

Volokh Video: The First Amendment and Privacy

The First Amendment and Privacy,” Episode 9 of Free Speech Rules, a video series by Professor Eugene Volokh and Austin Bragg hosted on Reason.com:

When can the law stop you from saying things about me in order to protect my privacy? Pretty rarely, it turns out.

Let’s just make clear what kind of “privacy” we’re talking about. The Supreme Court has sometimes discussed a “right to privacy,” but that’s generally a right to personal autonomy—for instance, the right to buy and use contraceptives. We’re not talking about that right here.

We also often have a right to physical privacy in the sense of freedom from trespass or surveillance. The Fourth Amendment, for example, protects us against “unreasonable searches and seizures” by the government. The law of trespass protects us against physical intrusions by our neighbors.

The tort of “intrusion upon seclusion” protects us from other kinds of surveillance, such as people photographing into our bedrooms using high-powered magnifying lenses or people telephoning us repeatedly in the middle of the night. We’re not talking about that here, either.

Rather, we’re talking about “informational privacy”—restrictions on communicating information about me when I think that information is highly private.

The five rules of free speech and privacy are set out in the remainder of the video.

“Do Robots Dream of First Amendment Speech?”

This from an article in NW Lawyer by Lisa Manfield profiling myself and David Skover’s book “Robotica: Speech Rights and Artificial Intelligence.” The article is based on an interview with Professor Skover.

Within a historical context, several patterns relating to speech theory emerge.


First, no communications technology is likely to overtake its predecessor unless its utility is great. For example, the Gutenberg Bible and other printed books eclipsed scripted documents because of their greater cost-effectiveness and functionality.

Second, if a new communications technology has great utility, it may promote values that eclipse those of its predecessors. To illustrate, the printing press helped foment the Protestant Reformation, which in turn challenged the religious dominance of the Catholic Church in Western Europe.

Third, governmental censorship is likely to push back against new communications technologies in the interest of preserving established values and power structures; hence the Catholic Church censored heretical books, controlled printing presses, and persecuted dissenters.

Nevertheless, when its utility is substantial, a new communications technology will likely override censorial efforts. Thus, despite the Catholic Church’s Index of Forbidden Books and inquisition, the non-religious book industry grew and thrived.

Reporters Committee’s 2020 Freedom of the Press Awards

From the Reporters Committee announcement:

[Last week] the Reporters Committee for Freedom of the Press announced its 2020 Freedom of the Press Award recipients. They were:

  • Ted Boutrous, media law attorney and partner at Gibson, Dunn & Crutcher LLP
  • Julie K. Brown, investigative journalist for The Miami Herald
  • Amal Clooney, co-founder and president, Clooney Foundation for Justice
  • Jane Mayer, staff writer and chief Washington correspondent for The New Yorker

The Reporters Committee annually recognizes the accomplishments of leaders in the news media and legal fields whose work embodies the values of the First Amendment through its prestigious Freedom of the Press Awards.

2019 Symposium: “What’s the Harm? The Future of the First Amendment”

Late last year the University of Chicago Legal Forum hosted a conference titled “What’s the Harm? The Future of the First Amendment.” Those participating in the conference (the papers of which will appear in a future issue of the Review) were:

  • Dean Thomas J. Miles (opening remarks)

Panel I: The Past & Future of First Amendment Harm 

  • William Baude (moderator)
  • Amy Adler
  • Danielle Citron
  • Leslie Kendrick
  • Fred Schauer

Panel II: Regulating False Speech & Press

  • Emily Buss (moderator)
  • Judith Miller
  • Jane Kirtley
  • Sonja West

Luncheon Keynote by Cass Sunstein

Panel III: Is the First Amendment Democratic? 

  • Erin Miller (moderator)
  • Charlotte Garden
  • Ronald J. Krotosznski, Jr.
  • Amanda Shanor​​​​​​​

Panel IV: The Tension Between Free Speech & Equality Values 

  • Genevieve Lakier (moderator)
  • Adam Green
  • P.E. Moskowitz
  • Helen Norton
  • Liz Sepper

Forthcoming Book on Free Speech & Dissent in World War I


World War I, given all the rousing “Over-There” songs and in-the-trenches films it inspired, was, at its outset, surprisingly unpopular with the American public. As opposition increased, Woodrow Wilson’s presidential administration became intent on stifling antiwar dissent. Wilson effectively silenced the National Civil Liberties Bureau, forerunner of the American Civil Liberties Union. Presidential candidate Eugene Debs was jailed, and Deb’s Socialist Party became a prime target of surveillance operations, both covert and overt. Drastic as these measures were, more draconian measures were to come.

In his absorbing new book, Free Speech and the Suppression of Dissent During World War I, Eric Chester reveals that out of this turmoil came a heated public discussion on the theory of civil liberties – the basic freedoms that are, theoretically, untouchable by any of the three branches of the U.S. government. The famous “clear and present danger” argument of Supreme Court Justice Oliver Wendell Holmes, and the “balance of conflicting interest” theory of law professor Zechariah Chafee, for example, evolved to provide a rationale for courts to act as a limited restraint on autocratic actions of the government. But Chester goes further, to examine an alternative theory: civil liberties exist as absolute rights, rather than being dependent on the specific circumstances of each case.

Over the years, the debate about the right to dissent has intensified and become more necessary. This fascinating book explains why, a century after the First World War – and in the era of Trump – we need to know about this.

Forthcoming Book “Against Free Speech”


This book explores the renewed and vociferous defence of free speech witnessed in relation to a number of high-profile events, including the Charlie Hebdo massacre, the Brexit and Trump campaigns, and recent campus politics. Anthony Leaker argues that the defence of free speech has played a pivotal role in a resurgent right-wing nationalism, that it is the rallying point for a wider set of reactionary political demands, a form of aggrieved liberalism at best and patriarchal white supremacy at worst, aided by a complicit liberal centre.

By focusing on these events and situating them within the wider geopolitical context of a post-democratic, post-truth world of austerity, ongoing conflict in the Middle East, Pasokification, and rising fascism, Leaker critiques the role that the defence of free speech has played in legitimising the scapegoating of oppressed minorities while deflecting attention from the egregious operations of power that have led to ever greater inequality, injustice and capitalist destruction. This powerful book shows that free speech is in fact a myth, an ideological tool employed by those in power to sustain existing power relations.

Forthcoming Book on Free Speech Theory

Forthcoming Scholarly Article

New From The Volokh Conspiracy 

In the News

YouTube: Stanford Artificial Intelligence & Law Society Symposium – AI & Free Speech

 Watch the symposiumDescription: 

ICT companies increasingly use automated systems to flag illegal or inappropriate content. Because the number of posts potentially linked to terrorist content, hate speech or fake news exceeds any human capability, AI has become common practice in content moderation. Yet automated systems are prone to mistakes and often remove content in error, including videos or posts documenting human rights abuses. Moreover, user’s newsfeed is increasingly determined by algorithms, shaping what content users are exposed to, and locking them into “echo chambers”. This is especially problematic in countries where social media platforms are the main source of information. Surely, algorithmic prediction has the potential to prevent conflict.

However, AI-based technology can also be used by authoritarian regimes to exacerbate censorship, monitor journalists, activists and political dissidents, and restrict people’s freedom of association by preventing online organizing. AI-enhanced surveillance, such as face recognition, can also have a chilling effect on free speech, as people opt to remain silent by fear of being targeted. Finally, the expansion and development of bot accounts risks increasing online harassment, typically targeting vulnerable people most.

Panelists:

YouTube: Interview with Jonathan Haidt on Campus Speech

Video description:

NBC News’ Symone Boyce takes an in-depth look at the concepts of safe spaces and trigger warnings on college campuses. Co-author with Greg Lukianoff of The Coddling of The American Mind, Jonathan Haidt breaks down why college campuses should be promoting the acceptance of opposing views.

YouTube: Duke Law School — Is Free Speech on Campus in Danger? A Conversation with Floyd Abrams

Video description:

Legendary First Amendment attorney Floyd Abrams has been counsel in numerous notable cases before the U.S. Supreme Court, including representing the New York Times in the Pentagon Papers case and Senator Mitch McConnell in Citizens United. Joined by Professor Nicole Ligon, Mr. Abrams weighs in on the timely topics of campus speech, fake news, press relations in the current administration, and other trends concerning free expression.

YouTube: Geoffrey Stone on Free Speech & Campaign Finance

Free speech expert Geoffrey Stone details the conservative argument for unlimited campaign spending by corporations, using the First Amendment, and the liberal argument against it.

1930 Video Clip of Justice Holmes & 1931 Audio Clip

If you’ve never seen the great jurist in video, view this video to get a short clip of him. Also, check out his voice from a 1931 radio address (h/t: Josh Blackman)

2019–2020 SCOTUS Term: Free Expression & Related Cases

Opinions or Judgments Handed Down

Cert. Granted

Pending Petitions

Petitions Denied

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.