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FAN 225: Paul Clement — Mr. First Amendment in the Roberts Court
"Defending unpopular positions is what lawyers do." — Paul Clement
Many know Paul D. Clement as a seasoned Supreme Court litigator with more than 95 arguments in that chamber. Others know him for his many skills as Solicitor General of the United States from 2004-2008. Still, others know him as a former law clerk to Justice Antonin Scalia (1993–94), when Madsen v. Women's Health Center, Inc. (1994, Scalia dissenting in part regarding abortion clinic protests) was handed down.
But who knew that Paul Clement had argued First Amendment free expression claims in seven cases before the Roberts Court?
- Wisconsin Right to Life v. FEC (2006) (for Petitioner)
- Rumsfeld v. Forum for Academic & Institutional Rights (2006) (for Petitioner)
- Davenport v. Washington Educ. Association (2007) (for Petitioner)
- F.E.C. v. Wisconsin Right to Life, Inc. (2007) (for Petitioner)
- United States v. Williams (2008) (for Petitioner)
- Davis v. Federal Election Commission (2008) (for Respondent)
- Rucho v. Common Cause (2019) (for Petitioner) (resolved on non-FA grounds)
He was also co-counsel in McCutcheon v. Federal Election Commission (2014) (for Petitioner).
Prior to the Roberts Court era, Mr. Clement also argued:
- McConnell v. Federal Election Commission (2003) (for Respondent)
- Ashcroft v. Free Speech Coalition (2002) (for Petitioner).
This term, he is counsel of record in no fewer than three First Amendment free expression cases currently pending before the Court:
- Charter Communications Inc. v. National Association of African American-Owned Media (cable operator and First Amendment right to include racial considerations in making editorial determinations)
- Archdiocese of Washington v. Washington Metropolitan Area Transit Authority (religious advertisements)
- Thompson v. Hebdon (campaign finance)
- Richard Hasen, "Unlimited Donations to Candidates, Coming Soon? Former Solicitor General Paul Clement may get the Supreme Court closer to killing what’s left of campaign-finance limits," The Atlantic (July 26, 2019)
- Michael J. Nelson & Lee Epstein, Lawyers With More Experience Obtain Better Outcomes (2019)
→ Last term Mr. Clement petitioned the Court to hear a First Amendment case in which the issue raised was whether public school teachers and coaches retain any First Amendment rights when at work and “in the general presence of” students.
- Kennedy v. Bremerton School District (cert. denied Jan. 22, 2019)
Additional First Amendment Cases in which Clement was Counsel of Record
- ConAgra Grocery Products Co. v. California (cert. denied 10-15-18) (Whether retroactively imposing massive liability based on a defendant’s nearly century-old promotion of its then-lawful products without requiring proof of reliance thereon or injury therefrom violates the First Amendment.)
- Jones v. Schneiderman (No. 15-1280) (2d Cir. Aug. 4, 2015). ("'[T]he very fact that conduct is undertaken before an audience can convert something that might not otherwise be considered First Amendment activity into inherently expressive conduct protected by the Free Speech Clause,' argued Mr. Clement.")
- Paul D. Clement, "Federal 'Balance Billing' Legislation: Constitutional Implications" (Kirkland & Ellis Paper, 2019) (cap out-of-network rates would violate the takings clause of the Fifth Amendment as well as the First Amendment right to freely associate)
NB: Some of the information set forth above is excerpted from a forthcoming essay, based on extensive research, by Ronald Collins and David Hudson entitled "The Roberts Court: It's First Amendment Free Expression Jurisprudence — 2006-2019."
Ban on Conversion Therapy Upheld
Writing in Law & Crime, Jerry Lambe reports that:
A federal judge on Friday dismissed a lawsuit challenging the state of Maryland’s law banning licensed practitioners from engaging in conversion therapy treatment with minors. . . .
In a 25-page decision, U.S. District Judge Deborah Chasanow ruled that the prohibiting conversion therapy, which is a practice aimed at changing minors’ homosexual orientation, did not violate any constitutionally protected rights.
→ Doyle v. Hogan (Dist., MD, Sept. 20, 2019).
Headline: "Media’s legal defeats trouble First Amendment advocates"
This from Josh Gerstein over at Politico:
A string of recent court setbacks for news organizations is prompting jitters among First Amendment advocates who fear that it could signal an erosion of the deference press outlets have enjoyed for decades in cases challenging their reporting.
Some legal experts view the rulings as signs that the courts’ view of the media is beginning to change, with more judges embracing the notion that major news outlets are partisan combatants rather than engaged in a dispassionate search for the truth.
Sixth Circuit: Tennessee Billboard Law Struck Down
This from David Hudson over at The Free Speech Center at MTSU:
The Tennessee Billboard Act and its selective treatment of on-premises signs violates the First Amendment, a federal appeals court panel has ruled.
The panel recognized that the Billboard Act’s different treatment of signs based on whether or not they were 'on-premises' signs signified that the Billboard Act was a content-based restriction on speech.
The Tennessee Billboard law contains a so-called “on-premises” exception which allows such signs to be posted with a permit. An “on-premises” sign is one that is located on the same premises as the activity or property advertised and the purpose of the sign is the identification of services or products at that very location.
William Harold Thomas Jr., the owner of many billboards, had been embroiled in litigation in Tennessee over whether he needed to obtain a permit for a billboard erected in a vacant lot. For many years, Thomas had a commercial billboard on the lot even though he did not have a state permit.
In 2012, Thomas changed the billboard from a commercial message to a noncommercial one with a patriotic message in support of the 2012 U.S. Olympic Team. The Tennessee Department of Transportation still maintained that Thomas needed a permit.
In 2013, Thomas sued in federal court, contending that the Billboard Act, and specifically its “on-premises” exception, unconstitutionally restricted his free-speech rights. A federal district court agreed, reasoning that the only way to determine whether a sign was “on-premises” was to reference the content of the billboard. The court also held that the law was not narrowly tailored to achieve the billboard’s law purposes." The Sixth Circuit affirmed.
→ Thomas v. Bright (6th Cir., Sept. 11, 2019)
- Harold Holzer, "The Presidents vs. the Press: The Endless Battle between the White House and the Media--from the Founding Fathers to Fake News" (Duton, May 12, 2020). Abstract:
"The FAKE NEWS media," Donald Trump has tweeted, "is not my enemy. It is the enemy of the American people." Never has our free press faced so great a threat. Yet the tension between presidents and journalists is as old as the republic itself. From George Washington to Trump, presidents have quarreled with, attacked, denigrated, and manipulated the fourth estate.
Washington groused about his treatment in the newspapers, but his successor, John Adams, actually wielded his executive power to overturn press freedoms and prosecute critical reporters. Thomas Jefferson tapped a reporter to find dirt on his rival, Alexander Hamilton, only to have the reporter expose his own affair with his slave Sally Hemings. (Jefferson denied the reports out of hand—perhaps the first presidential cry of "fake news.") Andrew Jackson rewarded loyal newspapers with government contracts; Abraham Lincoln shuttered critical papers and imprisoned their editors without trial. FDR and JFK charmed journalists in order to protect their personal secrets, while Nixon cast the press as a public enemy for daring to investigate his own.
In this remarkable new account, acclaimed scholar Harold Holzer guides readers through the clashes between chief executives and journalists, showing how these battles were waged and won, while girding us for a new fight to protect our nation's greatest institution: a free and functioning press.
- Suzanne Nossel, "Speak Free: A Guide to Defending Free Speech in Our Time" (Dey Street Books, May 5, 2020)
Forthcoming Scholarly Article
- Erica Goldberg, "First Amendment Cynicism and Redemption,"University of Cincinnati Law Review (forthcoming 2020). Abstract:
In this article, I propose a way out of the vicious cycle of “First Amendment cynicism.” I define this term as the disingenuous application or non-application of the First Amendment to further political ends unrelated to freedom of expression. The cycle is facilitated by either accurate or inaccurate perceptions of FirstAmendment cynicism by one’s political opponents.
As one example, the perception by those on the political left that the right is applying the First Amendment cynically — turning the First Amendment into the “New Lochner” — leads the left to lose faith in FirstAmendment principles. Some on the left then engage in First Amendment cynicism, not applying the FirstAmendment to those that harm their agenda. This approach is then observed by the right, and the cycle continues. Further, improper accusations of First Amendment cynicism, or what I term “second-order FirstAmendment cynicism” render this cycle ever more vicious.
To restore both the perception and the reality of a First Amendment that serves the entire political spectrum, I first demonstrate why the increasing accusations of First Amendment cynicism are overstated and ahistorical. I then argue that the First Amendment can be both nonpartisan — treating equally speech of all political stripes — and apolitical — leading to outcomes and social arrangements that favor no political ideology. The best way to ensure that free speech doctrine remains nonpartisan and apolitical is to favor a civil libertarian approach. However, courts should ensure that the First Amendment is egalitarian in cases where the government must intervene, such as cases involving speech on government land or cases involving the heckler’s veto. Finally, I propose ways for the Supreme Court to manage its docket and refine existing FirstAmendment doctrine so that the First Amendment serves those who most need its protections.
News from First Amendment Watch
- Department of Education Letter Threatens UNC and Duke with Funding Cuts, First Amendment Watch (Sept. 24, 2019)
- Department of Justice Sues Edward Snowden for Proceeds of New Memoir, First Amendment Watch (Sept. 18, 2019)
- Virginia Lt. Governor Files $400 Million Defamation Suit Against CBS, First Amendment Watch (Sept. 17, 2019)
In the News
- Eugene Volokh, #ShutUp #RightNow: Speech Restriction Quickly Imposed on Woman Who Accused Ex-Boyfriend of Being a Stalker, The Volokh Conspiracy (Sept. 24, 2019)
- Eugene Volokh, Disclosure vs. Secrecy All the Way Down, The Volokh Conspiracy (Sept. 24, 2019)
- David Hudson, Federal Appeals Court Finds First Amendment Right to Hear Execution Process, First Amendment Encyclopedia (Sept. 19, 2019)
- David Hudson, Student’s Submission of Troubling Story Not Protected Under First Amendment, Federal Court Says, First Amendment Encyclopedia (Sept. 19, 2019)
2019–2020 Term: Free Expression & Related Cases
- Carney v. Adams
- Archdiocese of Washington v. Washington Metropolitan Area Transit Authority
- United States Agency for International Development v. Alliance for Open Society International Inc.
- Buchanan v. Alexander
- Carter v. Massachusetts
- Miller v. Inslee
- Thompson v. Hebdon
- Price v. City of Chicago, Illinois
- National Review, Inc. v. Mann
- Charter Communications Inc. v. National Association of African American-Owned Media
Pending Petitions: Free Speech Related
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