This past Monday the Supreme Court handed down its first campaign finance ruling since McCutcheon v. Federal Election Commission (2014), this at the same time that it denied cert. in another campaign finance case, Libertarian National Committee Inc. v. Federal Election Commission.
The latest ruling came by way of a per curiam opinion in Thompson v. Hebdon — Paul Clement was lead counsel in the case. The issue raised in Hebdon was whether Alaska’s $500 individual-to-candidate and individual-to-group contribution limits violate the First Amendment. The Ninth Circuit Court of Appeals upheld the Alaska law in an opinion by Judge Consuelo María Callahan (joined by Judge Carlos T. Bea) with a partial concurrence and partial dissent by Chief Judge Sidney Thomas. The Supreme Court granted cert., vacated the judgment, and remanded the case in order to "revisit whether Alaska’s contribution limits are consistent with our First Amendment precedents."
The unanimous judgment (with Justice Ginsburg issuing a "statement") took issue with the following aspects of the Ninth Circuit ruling:
- "the Ninth Circuit declined to apply our precedent in Randall v. Sorrell, 548 U. S. 230 (2006), the last time we considered a non-aggregate contribution limit. . . . JUSTICE BREYER’s opinion for the plurality observed that 'contribution limits that are too low can . . . harm the electoral process by preventing challengers from mounting effective campaigns against incumbent officeholders, thereby reducing democratic accountability.'"
- "In Randall, we identified several 'danger signs' about Vermont’s law that warranted closer review. Alaska’s limit on campaign contributions shares some of those characteristics."
- "First, Alaska’s $500 individual-to-candidate contribution limit is 'substantially lower than . . . the limits we have previously upheld.'"
- "Second, Alaska’s individual-to-candidate contribution limit is 'substantially lower than . . . comparable limits in other States.'"
- "Third, Alaska’s contribution limit is not adjusted for inflation."
- "In Randall, we noted that the State had failed to provide 'any special justification that might warrant a contribution limit so low.' . . . The parties dispute whether there are pertinent special justifications here."
In all of this, one wonders how long Buckley v. Valeo's (1975) expenditure vs contributions dichotomy will survive.
Hasen on Thompson v. Hebdon
Over at the Election Law Blog, Professor Richard Hasen commented that in Thompson, the Court:
indicated that Justice Breyer’s opinion is the operable test, and remanded the case for reconsideration by the Ninth Circuit in light of Randall. In doing so, the Court avoided deciding, for example, that contribution limits should be judged under strict scrutiny.
This is not good news for supporters of the Alaska regulation, because along the way the Court gave reasons to suggest that under the Randall test, the limits were so low as to violate the First Amendment. Justice Ginsburg concurred separately, accepting the remand but saying that under the Randall test Alaska’s limits could still survive. This seems quite doubtful should the case make it back to the Supreme Court, and the Ninth Circuit is likely to get that message.
High Court Denies Review in Defamation Cases — Alito Dissents
The Court also denied cert. in two defamation cases — Justice Alito issued a dissenting opinion in the cases:
The issues raised in National Review were: (1) Is the question whether a statement contains a “provably false” factual connotation a question of law for the court (as most federal circuit courts hold), or is that a question of fact for the jury when the statement is ambiguous (as many state high courts hold)? and (2) does the First Amendment permit defamation liability for expressing a subjective opinion about a matter of scientific or political controversy, such as characterizing a statistical model about climate change as “deceptive” and calling its creation a form of “scientific misconduct”?
The issues raised in Competitive Enterprise, the companion case, were: (1) Whether the First Amendment permits defamation liability for subjective commentary on true facts concerning a matter of public concern; and (2) whether the determination of whether a challenged statement contains a provably false factual connotation is a question of law for the court or a question of fact for the jury.
→ Justice Alito dissented: "The petition in this case presents questions that go to the very heart of the constitutional guarantee of freedom of speech and freedom of the press: the protection afforded to journalists and others who use harsh language in criticizing opposing advocacy on one of the most important public issues of the day. If the Court is serious about protecting freedom of expression, we should grant review."
Comments on National Review & Competitive Enterprise: Smolla, Chemerinsky, & Corn-Revere
Dean Rod Smolla:
In reading Justice Alito’s opinion, I found myself thinking back to the opinion written by Justice Thomas, concurring in the denial of cert in the Bill Cosby defamation matter last term. Both Justices appear deeply interested in addressing fundamental First Amendment doctrines shaping modern defamation law — though quite possibly from opposite perspectives.
As a defamation litigator and scholar, I’d be delighted if the Supreme Court decided to once again begin taking up some of the issues on which lower courts have often drifted apart in recent decades. It has been quite some time since the Court has taken a "pure" First Amendment defamation case — and by my lights, that is overdue. The National Review case may not have been the ideal vehicle, particularly since the issues were framed so early in the litigation. But I hope the Court finds an apt vehicle soon.
Dean Erwin Chemerinsky:
I think that Justice Alito is certainly correct that these are important issues of First Amendment law that need Supreme Court resolution: whether the courts or juries should decide whether an allegedly defamatory statement can be shown to be untrue; how to draw the line between fact and opinion.
I think that the Court at some point will take up these issues. But they are not new questions and the Court has left them unresolved for many years. My guess is that the justices didn’t think this case was the right vehicle for addressing those issues.
Mr. Robert Corn-Revere:
Justice Alito’s dissent from denial of certiorari in CEI v. Mann highlights an inexplicable reluctance by the Court to address important First Amendment questions where there is an acknowledged split in the decisions of lower courts. It is also puzzling that his was the only dissenting voice.
Illinois High Court Upholds Revenge Porn Law
The case is Illinois v. Austin (Ill., 2019). The defendant, Bethany Austin, "was charged with violating section 11-23.5(b) of the Criminal Code of 2012 (720 ILCS 5/11-23.5(b) (West 2016)), which criminalizes the non-consensual dissemination of private sexual images." On the defendant’s motion, the circuit court "dismissed the charge, finding that provision facially unconstitutional as an impermissible restriction on the right to free speech as guaranteed by the United States and Illinois Constitutions." The State filed a direct appeal challenging the judgment of the circuit court. In a 5-2 ruling, the Illinois Supreme Court reversed and remanded the matter to the circuit court for further proceedings.
→ Note: "There are currently 39 states that have enacted laws criminalizing the nonconsensual dissemination of private sexual images. Illinois’ statute is seen as one of the most far reaching."
→ Note: "The Illinois statute was inspired by model legislation developed by Law Professor Mary Ann Franks, who argues that limiting revenge porn to acts intended to harm or harass seriously misconstrues the devastating effects produced by this conduct."
→ Danielle Keats Citron & Mary Anne Franks, Criminalizing Revenge Porn, Wake Forest Law Review (2014)
Among other things, Justice P. Scott Neville Jr.'s majority opinion declared:
- "We decline the State’s invitation to identify a new category of speech that falls outside of first amendment protection. The nonconsensual dissemination of private sexual images, prohibited by section 11-23.5(b) of the Criminal Code), does not fall within an established first amendment categorical exception."
- "Content-neutral laws are subject to an intermediate level of scrutiny because they generally present a less substantial risk of excising certain ideas or viewpoints from the public dialogue. . . .Section 11-23.5(b) meets this standard."
- "We conclude that section 11-23.5(b) is subject to an intermediate level of scrutiny also because the statute regulates a purely private matter."
- "[W]e have no difficulty in concluding that the nonconsensual dissemination of the victim’s private sexual images was not an issue of public concern."
- "[S]ection 11-23.5 is narrowly tailored to further the important governmental interest identified by the legislature. Accordingly, we conclude the statute does not burden substantially more speech than necessary."
- "In evaluating the competing social costs at stake, we have held that Illinois has a substantial governmental interest in protecting the privacy of persons who have not consented to the dissemination of their private sexual images. Although defendant claims that section 11-23.5(b) will deter the free speech of persons who have legally and unconditionally obtained the private sexual images of others, her assertion is unpersuasive given the limited application of the statute and the fact that any possible overbreadth is minor when considered in light of the statute’s legitimate sweep."
- "Defendant does not contend that section 11-23.5(b) contains insufficiently clear standards for those who enforce it and may lead to arbitrary or discriminatory enforcement. We therefore address only whether the statute provides fair warning sufficient to avoid prosecution. [We conclude that it does not.]"
Village of Waterford First Blocks & Then Unblocks Citizen on Its Official Facebook Page
This from The Journal Times:
The Village of Waterford may have violated the First Amendment by blocking a member of one of its own committees on Facebook, The Journal Times has discovered.
The village’s action comes amid a series of high-profile cases nationwide in which courts and free speech advocacy groups have ruled government officials violated the First Amendment’s guarantee of free speech by blocking members of the public on social media. Elected officials from President Donald Trump to U.S. Rep. Alexandria Ocasio-Cortez, D-N.Y., to Wisconsin Assembly Speaker Robin Vos, R-Rochester, have been found in violation of the First Amendment in the past year for blocking critics on Twitter.
"There is a bit of a re-education going on right now about how to square the First Amendment with modern governance happening via social media," said Francesca Procaccini, a lecturer in law and associate research scholar at Yale Law School who specializes in First Amendment law.
→ The person who was blocked, Vander Sanden, was subsequently unblocked following The Journal Times news story.
New Knight Foundation’s Report on Student Views on the First Amendment
Drawing on seven nationally representative surveys of U.S. high school students from 2004 to 2018, this research synthesis report finds:
- THERE HAS BEEN A MODEST INCREASE IN AVERAGE SUPPORT AMONG STUDENTS FOR THE FIRST AMENDMENT. However, there are significant differences in First Amendment support by race across all years, and gender, beginning in 2011.
- BOYS AND WHITE STUDENTS ARE LESS INCLINED THAN GIRLS AND STUDENTS OF COLOR TO AGREE WITH THE STATEMENT: “THE FIRST AMENDMENT GOES TOO FAR IN THE RIGHTS IT GUARANTEES.” Of note, beginning in 2011, average responses by group fall on either side of the agree/disagree divide, with boys and white students slightly disagreeing with the statement, and girls and students of color slightly agreeing with it.
- THERE IS A GROWING DIVIDE BETWEEN WHITE STUDENTS AND STUDENTS OF COLOR ON THE ISSUE OF FIRST AMENDMENT OVERREACH. White students’ support is relatively stable, while students of color increasingly agree that the First Amendment goes too far.
- THERE ARE SIGNIFICANT DIFFERENCES BY U.S. CENSUS REGION AS TO WHETHER THE FIRST AMENDMENT GOES TOO FAR, MOST NOTABLY BETWEEN THE NORTHEAST AND WEST/MIDWEST. Generally speaking, the Midwest and West were the most supportive of First Amendment rights, as of 2018, whereas the students in the Northeast and South were more likely to believe the First Amendment goes too far.
- IN GENERAL, COURSEWORK HAS A SIGNIFICANT EFFECT ON STUDENTS’ SUPPORT FOR THE FIRST AMENDMENT. On average, students who have taken a class that dealt with the First Amendment are more supportive of various rights and protections, and less likely to think the First Amendment goes too far.
- ACROSS THE SURVEYS, NEWS CONSUMPTION HAS NOT BEEN A PARTICULARLY RELIABLE PREDICTOR OF FIRST AMENDMENT VIEWS. The exceptions are students who often use social media for news; they were more supportive of specific First Amendment rights and protections, as compared with peers, in the 2018 survey.
- THE ABILITY OF SCHOOLS TO REACH BEYOND CAMPUS WALLS TO MONITOR SPEECH IS AN ISSUE THAT IS VEXING SCHOOL DISTRICTS ACROSS THE COUNTRY RIGHT NOW. As values of safety and security clash with notions of personal freedom. On average, students mildly disagree that schools should be allowed to discipline students who post offensive content online outside of school time. Girls and students of color are more supportive of punishments.
- IN TERMS OF FREEDOM OF PUBLICATION FOR ONLINE NEWS SITES, THERE ARE LARGE DIFFERENCES BY GENDER, WITH BOYS SIGNIFICANTLY MORE SUPPORTIVE OF ONLINE NEWS FREEDOM THAN GIRLS. Boys are also more supportive than girls regarding the right of people to say whatever they want in public, including offensive statements. Girls are more supportive of government intervention when bullying or offensive speech on social media.
Speech on College Campuses
- Ohio University reverses unconstitutional directive muzzling fraternity members, FIRE (Nov. 26, 2019)
- Samantha Harris, Boston College ruling highlights lack of rights at private universities, FIRE (Nov. 25, 2019)
So to Speak Podcast: Dale E. Miller on Mill's 'On Liberty'
[In this] episode of So to Speak: The Free Speech Podcast, we are joined by Professor Dale E. Miller to discuss the life and philosophy of the English philosopher John Stuart Mill, whose 1859 essay “On Liberty” is a classic text — maybe the classic text — defending the principles of free expression.
Miller is a professor and associate dean for research and graduate studies at Old Dominion University. He is the author of "J.S. Mill: Moral, Social, and Political Thought."
Unprecedented Podcast on John & Mary Beth Tinker
Clear & Present Danger Podcast: The Fall & Rise of Free Speech in 19th Century Europe
The 18th century ended with free speech in full retreat. With the French Revolution, the call for “Enlightenment Now!” was no longer seen as the harbinger of humanity’s inevitable march toward progress. It had become synonymous with radical forces of destruction drowning monarchy, tradition, and religion in the blood of kings, aristocrats, and nuns.
With the defeat of Napoleon in 1814, conservatives and monarchs were firmly back in power — and they had no intention of letting go. Never again were those rulers who put down wild-eyed revolutionaries like mad dogs going to allow radicals to seduce the people with lofty principles and propaganda.
In order to rebuild a stabile Europe with respect for authority and tradition, freedom of speech had to be reined in. Even in supposedly liberal Britain, William Pitt’s anti-revolutionary “reign of terror” of the 1790s was revived and intensified in the 1810s and 20s.
News from First Amendment Watch
2019–2020 SCOTUS Term: Free Expression & Related Cases
Opinions or Judgments Handed Down
- Thompson v. Hebdon (per curiam with Ginsburg, J., statement concurring in remand)
- Barr v. American Association of Political Consultants, Inc.
- Charter Communications, Inc. v. Gallion
- Elster v. City of Seattle
- Facebook, Inc. v. Duguid
- Arlene’s Flowers Inc. v. Washington
- EMW Women’s Surgical Center v. Meier
- Americans for Prosperity Foundation v. Becerra
- New York Republican State Committee v. Securities and Exchange Commission
- Capital Associated Industries Inc. v. Stein
- 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.
- Carter v. Massachusetts
- Price v. City of Chicago, Illinois
- Charter Communications Inc. v. National Association of African American-Owned Media
Pending Petitions: Free Speech Related
- 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 (free speech-related)
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