The world of American free speech law is populated with many names, from Benjamin Bache to Benjamin Gitlow, from James Madison to Alexander Meiklejohn, and from Holmes and Brandeis to Roberts and Kennedy. And then there is Floyd Abrams, the most noted First Amendment lawyer of our time. But what of Hayden Covington (1911–1978), who argued West Virginia State Board of Education v. Barnette (1943)? He is the same man who argued more First Amendment cases in the Supreme Court than all others. Who was he and what is his legacy?
To raise such questions is to point to the problem, the key one: So much of legal scholarship is infatuated with appellate decisional law and the judges who write it (or are so credited). In other words, if lawyers such as Hayden Covington are virtually ignored in our scholarship and casebooks, it is first and foremost because of the judge-made-law view that is so much the norm in modern American legal thinking.
In Thoughts on Hayden C. Covington & the Paucity of Litigation Scholarship (13 FIU L. Rev. 599 (2019), I set out to do two things:
- Sketch out the life story of the lawyer for the Jehovah’s Witnesses, the man who argued more First Amendment cases in the Supreme Court than all others, and;
- Provide an overview of some of the important work done by lawyers who argued landmark free speech cases in the Supreme Court (e.g. Olive Rabe, Walter H. Pollak, Leonard B. Boudin, Osmond K. Fraenkel, Ephraim London, Stanley Fleishman, Herbert Wechsler, William Kunstler, Bruce Ennis, Eleanor Holmes Norton, Patricia Millett, John W. Weston, and Robert Corn-Revere, among others)
Consider the following mainstays of modern First Amendment and constitutional law:
- The incorporation doctrine [religion clauses]
- The state action doctrine as applied to the First Amendment
- The preferred position doctrine
- The least restrictive means doctrine
What do those four cases in which those doctrines were formulated have in common? Was it that the same jurist wrote all of the opinions in them? Was that it? To ask the question is to answer it. The common denominator in these cases, among others, is that the same man (Hayden Covington) argued all of them and all of them involved the same rights claimants (Jehovah’s Witnesses). “In the mid-twentieth century, Covington handled as many as 50 major cases every year involving the civil liberties of Jehovah’s Witnessess, who frequently faced persecution because of their uncommon beliefs and often provocative behavior.”
The Assange Indictment & the First Amendment
This from a piece by Jackie McDermott posted over on the National Constitution Center’s Constitution Daily:
WikiLeaks founder Julian Assange’s arrest for hacking conspiracy charges last Wednesday has sparked renewed debate over where courts should draw the line between journalism protected by the First Amendment and actions that are considered cybercrime under federal law.
Police arrested Assange in London on April 11, 2019, and that day the Justice Department unsealed his indictment for “conspiracy to commit computer intrusion.” Assange is accused of helping Chelsea Manning, a former U.S. Army intelligence analyst and convicted leaker, hack into a goverment computer to obtain classified documents in a manner that would conceal her identity. Assange will likely be extradited to face trial in the United States, and he would face a maximum sentence of five years in prison.
Assange’s arrest raised alarm bells among some First Amendment advocates, including Ben Wizner, Director of the ACLU’s Speech, Privacy, and Technology Project, and the primary legal adviser to Edward Snowden. Wizner joined Joshua Geltzer, the Executive Director of Georgetown’s Institute for Constitutional Advocacy and Protection, to discuss the Assange indictment on this week’s episode of our We the People podcast.
Wizner expressed concern about the way that the indictment described Assange’s interactions with Manning. As Manning sent information and documents to Assange, Assange sought to maintain a secure means of communications with her and help her conceal her identity—actions that journalists often take when cultivating relationships with government sources.
‘These are things that investigative journalists do all the time,” Wizner said. While making clear that journalists do not help sources hack into computers, he added that “all of the acts in furtherance, all of the other conduct that’s described [in the indictment], does look a lot like [journalism], and the journalists I’ve spoken to in the last week are at least uneasy about that.”
- Ben Wizner & Jameel Jaffer, The Assange Indictment and Press Freedoms, ACLU (April 15, 2019)
Fifth Circuit Rules for Plaintiff in Challenge to Sheriff Office Facebook Page
This from Steven D. Schwinn over at Constitutional Law Prof Blog:
The Fifth Circuit ruled earlier this week that a sheriff office’s official Facebook page was a public forum; that the office’s posting rules were based on the viewpoint of the poster, in violation of the First Amendment; and that the rules constituted official county policy. The ruling reverses a lower court’s denial of a preliminary injunction and remands the case for further proceedings. (That is, the case is still at a preliminary stage, though the ruling answers many of the legal questions.)
The case, Robinson v. Hunt County, Texas, tested the Hunt County Sheriff’s Office Facebook page. According to the page, “We welcome your input and POSITIVE comments regarding the Hunt County Sheriff’s Office.” Moreover, “We encourage you to submit comments, but please note that this is NOT a public forum.” On January 18, 2017, the HCSO Facebook account posted this message:
We find it suspicious that the day after a North Texas Police Office is murdered we have received several anti-police calls in the office as well as people trying to degrade or insult police officers on this page. ANY post filled with foul language, hate speech of all types and comments that are considered inappropriate will be removed and the user banned. There are a lot of families on this page and it is for everyone[,] and therefore we monitor it extremely closely. Thank you for your understanding.
Robinson and others posted on the page criticizing the policy as a violation of the First Amendment. Robinson’s post was removed, and she was banned from the page. She sued individual officers and the county and moved for a preliminary injunction. The district court denied the injunction and later dismissed the case for failure to state a claim.
The Fifth Circuit reversed as to the county. (Robinson didn’t appeal as to the individual officers.)
13 First Amendment Scholars File Amicus Brief in Political Boycott Case
The case is Arkansas Times v. Waldrip (8th Cir.). The Arkansas Times challenges the constitutionality of Act 710, a state statute requiring that companies doing business with state entities certify that they are not boycotting Israel. The amicus brief filed by 13 First Amendment scholars is excerpted below:
This appeal turns on a narrow, but significant, dispute about the scope of the Supreme Court’s decision in NAACP v. Claiborne Hardware Co. (1982). In that landmark case, the Supreme Court recognized that political boycotts by consumers are inherently expressive. On that basis, the Court held that the First Amendment protected the NAACP and its members from liability for organizing and participating in a political boycott of white merchants in Claiborne County, Mississippi.
The State of Arkansas has enacted a law that burdens peaceful political boycotts of Israel, by requiring state contractors to certify that they will not boycott Israel or companies who do business in Israel for the duration of their contracts. See Ark. Code Ann. § 25-1-502; id. § 25-1-503. The law allows contractors to forgo this requirement if they are willing to accept a contract price at least twenty percent less than the lowest certifying business. Id. § 25-1-503(b)(1). The primary question on appeal is whether Arkansas’s anti-boycott law is subject to First Amendment scrutiny under Claiborne. Amici write respectfully to explain that the district court erred in holding that the First Amendment has no application to this case. Claiborne clearly held that political boycotts by consumers are covered by the First Amendment.
The 13 professors are:
- William D. Araiza, Professor of Law Brooklyn Law School
- Jack Balkin, Knight Professor of Constitutional Law and the First Amendment Yale Law School
- Erwin Chemerinsky, Dean and Jesse H. Choper Distinguished Professor of Law University of California, Berkeley, School of Law
- Owen Fiss, Sterling Professor Emeritus of Law Yale Law School
- Katherine Franke, Sulzbacher Professor of Law, Gender, and Sexuality Studies Columbia Law School
- Seth F. Kreimer, Kenneth W. Gemmill Professor of Law University of Pennsylvania Law School
- Genevieve Lakier, Assistant Professor of Law University of Chicago Law School
- Burt Neuborne, Norman Dorsen Professor in Civil Liberties New York University School of Law
- Amanda Shanor, Assistant Professor The Wharton School University of Pennsylvania
- Geoffrey R. Stone, Edward H. Levi Distinguished Service Professor of Law The University of Chicago
- Nadine Strossen, John Marshall Harlan II Professor of Law New York Law School
- Nelson Tebbe, Professor of Law Cornell Law School
- Rebecca Tushnet, Frank Stanton Professor of the First Amendment Harvard Law School
Lawsuit Challenges South Dakota Ban on Out-of-State Contributors to Ballot Measures
From the Institute for Free Speech press release:
A coalition of South Dakota media associations, trade associations, a nonprofit advocacy group, and a former South Dakota resident recently filed a lawsuit in federal court challenging a South Dakota law that will ban Americans from other states from contributing to ballot measure campaigns. The groups are represented by the Institute for Free Speech and former South Dakota Attorney General Marty J. Jackley.
“The ban is an affront to the First Amendment,” said Institute for Free Speech Legal Director Allen Dickerson. “States cannot prevent speech simply because it is funded in part by Americans who live in other states. This law denies South Dakotans the right to hear messages from their fellow Americans.”
Plaintiffs in the case are the South Dakota Newspaper Association, the South Dakota Retailers Association, the South Dakota Broadcasters Association, the South Dakota Chamber Ballot Action Committee, Thomas Barnett, Jr., and Americans for Prosperity.
The lawsuit says contributions in support or opposition to ballot measures are an important form of free speech protected by the First Amendment. Courts have long recognized that contributions to ballot measure campaigns promote robust debate about public issues. This is no less true for contributions from Americans from other states, the lawsuit explains.
. . .
Banning out-of-state contributions prevents groups like the Sierra Club from supporting ballot measures to enhance environmental protections, and stops groups like the NRA from contributing to ballot measure campaigns that affect gun rights. The result is less speech and less information for voters.
The complaint cites the Supreme Court’s Buckley v. Valeo decision, which noted that government cannot restrict the speech of some segments of society in order to bolster others. The First Amendment requires that voters decide for themselves which views to give weight. State governments have no legitimate reason to prohibit Americans from other states from contributing to ballot measure campaigns, the lawsuit says.
Michigan ACLU Sues City Over No Soliciting Sign Ordinance
This from a story by Mark Cavitt for the Iosco County News-Herald:
The Michigan ACLU is challenging the constitutionality of a City of Wixom ordinance the regulates solicitors, peddlers, and canvassers.
According to the lawsuit, filed in the U.S. Eastern District Court in Detroit on Monday, the ACLU states that two provisions included in the city’s ordinance are unconstitutional and restrict an individual’s First Amendment right to free speech.
The provisions define the words “canvasser” and “canvassing” and ban door-to-door canvassing in public neighborhoods that choose to place signs at each entrance prohibiting such activity. The City of Wixom does not require canvassers to carry a permit.
. . .
ACLU Attorney Bonsitu Kitaba called the ordinance “problematic” in that it restricts political expression.
She added that while an individual resident may choose to post a “No canvassing” or “No solicitation” sign on their own property, the city or neighborhood association cannot implement a “blanket ban” on these types of First Amendment activities.
Scalia Law’s Free Speech Clinic Assists in Challenge to Limits on Vanity License Plates
Scalia Law’s Free Speech Clinic is assisting the Pacific Legal Foundation in an important challenge to the California Department of Motor Vehicles’ arbitrary censorship of speech on personalized license plates.
[Professor] Jon Kotler applied for a personalized plate to celebrate the success of his favorite soccer team—the London-based Fulham Football Club. The team is known by its white jerseys, and Kotler’s proposed license plate read “COYW,” an abbreviation of the club’s commonly used slogan “Come on You Whites.”
To his surprise, the DMV denied his request. Despite the slogan’s popularity and longtime use, the DMV denied Kotler’s request due to its subjective fear that the slogan is hostile, insulting, or racially degrading. A professor of constitutional law at the University of Southern California, Kotler felt the decision violated his First Amendment rights.
“You can’t allow bureaucrats to make decisions that are fundamental to what it means to be an American, and our free speech is one of those things,” Kotler said. “As I tell my students, ours is the only constitution in the world that protects its citizens against their own government. When the government starts to infringe on our rights, that’s when the individual citizen must speak up. If we don’t, we’ll get what we deserve and will have only ourselves to blame.”
. . .“By providing law students with experience in cases such as this, the Free Speech Clinic is helping to train the next generation of First Amendment litigators,” said JoAnn Koob, director of the Liberty & Law Center. “The Free Speech Clinic was launched at Scalia Law last fall and it’s been a great first year.”
Forthcoming Book “Pornotopia”
- Paul Preciad, Pornotopia: An Essay on Playboy’s Architecture and Biopolitics (Zone Books, Oct. 22, 2019)
Published for the first time in 1953, Playboy became not only the first pornographic popular magazine in America, but also came to embody an entirely new lifestyle that took place in a series of utopian multimedia spaces, from the fictional Playboy’s Penthouse of 1956 to the Playboy Mansion of 1959 and the Playboy Clubs of the 1960s. At the same time, the invention of the contraceptive pill offered access to a biochemical technique able to separate (hetero)sexuality and reproduction, troubling the traditional relationships between gender, sexuality, power, and space.
In Pornotopia, Paul Preciado examines popular culture and pornographic spaces as sites of architectural production. Combining historical perspectives with insights from critical theory, gender studies, queer theory, porn studies, and the history of technology, and drawing from a range of primary transdisciplinary source treatise on sexuality, medical and pharmaceutical handbooks, architecture journals, erotic magazines, building manuals, and novels―Preciado traces the strategic relationships among architecture, gender, and sexuality through popular sites related to the production and consumption of pornography: design objects, bachelor pads, and multimedia rotating beds. Largely relegated to the margins of traditional histories of architecture, these sites are not mere spaces but a series of overlapping systems of representation. They are understood here not as inherently or naturally sexual, nor as perverted or queer, but rather as biopolitical techniques for governing sexual reproduction and the production of gender in modernity.
- Collins & Skover, “The Pornographic State,” Harvard Law Review (1994) (employing the term “pornotopia”).
New Book on “Literary Obscenities”
- Erik M. Bachman, Literary Obscenities: U.S. Case Law and Naturalism after Modernism (Penn State University Press, 2018)
Scholarly Article on Qualified Immunity & Recording Police
- Tyler Finn, Qualified Immunity Formalism: “Clearly Established Law” and the Right to Record Police Activity, Columbia Law Review (2019)
As applied to the First Amendment right to record police, qualified immunity formalism has produced an artificial circuit split. While the Supreme Court has yet to rule on the issue, each of the six federal appellate courts to address the constitutional question has concluded that the First Amendment protects the right of citizens to document the police. In the other circuits, which have remained silent on the matter, trial courts maintain that the right is not clearly established, thereby immunizing law enforcement defendants from liability. Despite the near-nationwide agreement that citizen recording merits constitutional protection, courts generally refuse to consider out-of-circuit decisions in their qualified immunity analyses.
Scholarly Article on Compelled Subsidies
- Jud Campbell, Compelled Subsidies and Original Meaning, First Amendment Law Review (2019)
Scholarly Article: Privacy as Europe’s First Amendment
- Bilyana Petkova, Privacy as Europe’s First Amendment, SSRN (April 15, 2019)
Report on Campaign Finance & Lobbying Laws
- Eric Wang, A Survey of Campaign Finance and Lobbying Laws in the 50 States, District of Columbia, New York City, and Seattle, Institute for Free Speech (March 19, 2019)
“Clear & Present Danger” Podcast: Solomon on History of First Amendment
In this conversation with professor Stephen Solomon we will explore the origins and drafting history of the First Amendment, including:
- The inspiration from early state constitutions and declarations in Virginia and Pennsylvania
- The Articles of Confederation
- The fierce debate surrounding the Constitutional Convention and ratification process.
- How Federalists and anti-Federalists clashed over the necessity of a bill of rights
- How some Federalists used the Heckler´s Veto to silence anti-Federalists
- James Madison´s first draft bill of rights and why Madison thought that the American conception of freedom of speech differed substantially from the British conception
- Whether Freedom of Speech is really “the First Freedom”
- What were the essential justification for freedom of speech envisaged by the Founders
- Whether the Founders would agree with 21. Century standards of free speech as developed by the Supreme Court
“So to Speak” Podcast: Akyol on Jailing Journalists in Turkey
On today’s episode of So to Speak, we sit down with Cato Institute Senior Fellow Mustafa Akyol to discuss threats to freedom of thought and expression around the world, with a particular focus on situations in Turkey and China.
Akyol has been described by CNN’s Fareed Zakaria as “Turkey’s finest political analyst.” Prior to joining Cato, he was a senior fellow at The Freedom Project at Wellesley College, where he learned a thing or two about illiberalism in America. He is also a regular contributing opinion writer for the New York Times.
“Make No Law” Podcast: Zansberg Talks About Gag Orders
“First Five” Podcast — Year of the Student Journalist
Freedom Forum Institute president Gene Policinski talks to the personalities in the news around cutting-edge issues and challenges to the First Amendment, providing first-hand insight and informative inquiry.
- Interview with Alex Connor of the Iowa Daily.
New & Notable Volokh Posts
- Eugene Volokh, Crime to Tweet About People Intending to “Abuse” Them?, The Volokh Conspiracy (April 20, 2019)
- Eugene Volokh, The First Amendment and the Hybrid Permanent Injunction, The Volokh Conspiracy (April 17, 2019)
YouTube: 3-D Printed Guns & the First Amendment
Can the government ban you from posting blueprints for 3-D printed guns online? What are the implications for the First Amendment?
A video collaboration with John Stossel. . . .
- Prof. Josh Blackman, South Texas College of Law Houston
- Rep. David Paul Linsky, State House, Massachusetts
New “FUCT” Clothing Line to Be Released This Week
See FAN 209 for excerpts from the Iancu v. Brunett oral argument, in which the issue is whether section 2(a) of the LanhamAct’s prohibition on the federal registration of “immoral” or “scandalous” marks, such as “FUCT,” is facially invalid under the free speech clause of the First Amendment.
2018–2019 Term: Free Expression & Related Cases
Pending: Cert. Petitions
- Dahne v. Riche
- Klein v. Oregon Bureau of Labor and Industries
- Evergreen Freedom Foundation v. Washington
- 1A Auto, Inc. v. Sullivan
- Uradnik v. Inter Faculty Organization
- In-and-Out Burger v. NLRB
- The Colorado Independent v. District Court
- Township of Millburn v. Palardy
- Missouri Ethics Commission, et al. v. Free and Fair Election Fund
- Knox v. Pennsylvania
- Tate v. United States
- Abbott, et al. v. Pastides (reply brief here)
- Utah Republican Party v. Cox
- McKee v. Cosby, Jr. (Thomas, J., concurring in denial of cert. with opinion)
- Kennedy v. Bremerton School District
- Lair v. Motil
- Lair v. Mangan
- Berninger v. FCC (net neutrality)
- Montanans for Community Development v. Mangan
- Zimmerman v. Austin
- Township of Millburn v. Palardy
FOIA: Review Granted
Free Expression Related Cases: Review Granted
- Nieves v. Bartlett (probable cause, First Amendment, and retaliation)
Review Granted: Free Expression Related Cases
- Manhattan Community Access Corp. v. Halleck (transcript of oral arguments)
- Rucho v. Common Cause (standing and gerrymandering) (transcript of oral arguments)
Pending Free Expression Related Cases
- Woodhull Freedom Foundation v. United States (Art. III, standing)
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.