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First Amendment News 242: Brett Kavanaugh's Novel Idea About Televising the Announcement of Supreme Court Opinions

The current issue of the University of Chicago Law Review Online has a short piece I co-authored with Floyd Abrams. The blog post is entitled "A Novel Idea: Televising the Announcement of Supreme Court Opinions."

In our piece we note that when it comes to the question of cameras in the courtroom, the responses by nominees to the High Court have been uniform; so, too, has been their position once confirmed:

Despite the “I have an open mind” and “would discuss it with my colleagues” trope offered during their confirmation hearings, once seated no Justice has openly endorsed the idea of having the Court’s proceedings filmed. Even Justice Sonia Sotomayor, who once seemed open to the idea, announced in 2013 that she had changed her mind. In March 2019, when Justices Kagan and Samuel Alito appeared before House lawmakers, they noted that the matter of cameras in the courtroom had not even been discussed by the Justices in recent years.

For all practical purposes, the cameras-in-the-courtroom story ends there . . . until one considers what then-Judge Brett Kavanaugh said in response to a question posed to him by Senator Chuck Grassley during his confirmation hearings. As we noted:

In the course of then Judge Brett Kavanaugh’s otherwise controversial 2018 confirmation hearing, he made a noteworthy observation: “I’d want to think about the difference between oral arguments and the actual announcements of the decisions. I think those are two distinct things. There hasn’t been much focus on the possibility of live audio or video of the decision announcements. That’s a distinct issue from oral arguments and I’d be interested in thinking about that and talking to my colleagues. . . . I will have an open mind on it.”

Though limited in scope, the Kavanaugh idea does speak directly to one of the main criticisms tendered against televising the Court's proceedings. For example, consider what troubled Justice Samuel Alito when, in 2019, he appeared before a House Appropriations Committee: “Lawyers would find it irresistible to try to put in a little soundbite in the hope of being that evening on CNN, or Fox, or MSNBC or one of the broadcast networks. And that would detract from the value of the arguments in the decision-making process.” Our response:

Separating oral arguments from the announcements of the decisions would alleviate whatever problems that might be said to arise from “lawyer showboating.” Whatever the merits of the repeatedly expressed apprehension about such attorney misbehavior, we think there would be real value in, and no downside to, letting the broader public observe the announcement of the opinions themselves being televised.

The distinction between televising the Court's oral arguments and televising the announcement of its opinions, we think, deserves serious consideration.  As we wrote:

Justice Kavanaugh’s reference to the possibility of letting the public view the announcement of Supreme Court rulings and opinions is encouraging. Doing so would be a small but important step in informing the public about judgements that have enormous impact on our lives. It would also likely enhance the esteem with which the public views the Court. As Chief Justice Roberts duly observed: “People would be pleased with what they saw in terms of how seriously we take our work.”

Possible Additional Objections: Of course, notwithstanding all of the above, it might still be argued that like the syllabus accompanying the Court's decisions, the announcement of the opinion lacks the force of law. Moreover, it might also be noted that the Justice assigned to write the majority opinion often does not share the announcement beforehand with his or her fellow Justices. Hence, any Justice's uncirculated announcement might likewise mislead the public to the extent that it departs from the final and official opinion of the Court.

Floyd Abrams's response: "The first objection would relate to the current practice of in-court announcements of opinions themselves since they, too, could mislead journalists and others who are present when the Justices announce their opinions. That is, journalists take account of what they’ve heard when they write their articles or otherwise describe the announcement of the opinion [see e.g. audio and transcribed announcement of majority opinion in District of Columbia v. Heller]. The same is true as to the second objection, as well. If the Justices really take these reasons seriously, they should just release their opinions without any verbal descriptions of them. But they do not."

I would only add that if such concerns were to be consistent as to the current practice and any possible televising of the announcements, the Chief Justice might be obligated to say at the outset: "The announcements of our opinions do not have the force of law, and they are offered by each Justice as to his or her own understanding of the holding of the opinion for the court." This kind of statement could cure whatever problems there are with the current practice of announcing opinions and also with any perceived problems associated with televising those announcements.    

In light of the above, the Justices have a unique opportunity to test Justice Kavanaugh's idea and give staying power to the Chief Justice's observation. That is, they should consider televising the announcement of their opinions in a trio of important cases now under review: Trump v. Vance, Jr. (2nd Cir 2019), Trump v. Mazars USA (DC Cir 2019) (en banc), and Trump v. Deutsche Bank (2nd Cir 2019) — three cases of great contemporary and historical import to the nation.

At Least Four First Amendment Cases to be Decided This Term

Though there are still many First Amendment petitions in the wings, thus far the Court has granted cert. in four First Amendment free speech cases:

  1. United States v. Sineneng-Smith (argued Feb 25, 2020)
  2. Chiafalo v. Washington (consolidated with Colorado Department of State v. Baca)
  3. Barr v. American Association of Political Consultants, Inc.
  4. Carney v. Adams

The issues in the cases involve (1) speech encouraging or inducing illegal immigration for commercial advantage, (2) fines for presidential electors who vote contrary to how the law directs, (3) a government-debt exception to the Telephone Consumer Protection Act of 1991’s automated-call restriction, and (4) a state constitutional provision that limits judges affiliated with any one political party to no more than a “bare majority” on the state’s three highest courts.

Two New Cert. Petitions 

The case is Fleck v. Wetch. According to SCOTUSBlog the two issues raised in the case are "(1) Whether laws mandating membership in a state bar association are subject to the same “exacting” First Amendment scrutiny that the Supreme Court prescribed for mandatory public-sector union fees in Janus v. American Federation of State, County, and Municipal Employees, Council 31; and (2) whether it violates the First Amendment to presume that an attorney is willing to pay for a bar association’s 'non-chargeable' political and ideological speech, unless and until that attorney takes steps to opt out."

Timothy Sandefur of the CATO Institute is the Counsel of Record.

Eighth Circuit Court of Appeals opinion here.

The other case is Austin v. Illinois. The two issues raised in the case are: (1) Whether strict First Amendment scrutiny applies to a criminal law that prohibits nonconsensual dissemination of non-obscene nude or sexually-oriented visual material? and (2) Whether the First Amendment requires a law that prohibits nonconsensual dissemination of non-obscene nude or sexually-oriented visual material to impose a requirement of specific intent to harm or harass the individual(s) depicted?

Robert Corn-Revere of Davis Wright Tremaine is the Counsel of Record.

Read the Illinois Supreme Court opinion.

Pentagon Seeks to Defund Military Newspaper, "Stars & Stripes"

This from an article by Jon Allsop writing in the Columbia Journalism Review:

[T]he Wall Street Journal reported
that the Pentagon plans to cut back its funding of Stars and Stripes, a government-owned—yet editorially independent—newspaper covering military matters.

That was news to the paper’s top management, which wasn’t officially informed of the planned cut until Monday morning. Initially, the extent of the cut wasn’t totally clear, though Terry Leonard, the paper’s editorial director, told NPR that it could amount to more than a third of the paper’s budget. On Wednesday, the Pentagon confirmed that it wants to cut the subsidy in its entirety. Like any newspaper, Stars and Stripes draws revenue from subscriptions, sales, and advertising—but, it says, it also “depends on the Defense Department subsidy to cover the expensive and sometimes dangerous task of overseas reporting and distribution.”

Why is the Pentagon targeting Stars and Stripes now? Officially, the decision stems from a wide-ranging review ordered by Mark Esper, the defense secretary, in a bid to free up extra funds. But Elaine McCusker, the Pentagon’s acting comptroller, also said the department had decided that in “the modern age,” running a newspaper “is probably not the best way we communicate.”

First Amendment Salon: “Trump, Twitter & The First Amendment”

The latest First Amendment salon took place last month in New York City. It featured a discussion between Jameel Jaffer, who successfully co-argued Knight First Amendment Institute v. Trump (2nd Cir., 2019), and Noah Feldman who authored The Courts Still Don’t Understand Trump’s Twitter Feed. Francesca Procaccini moderated the discussion between them.  

Francesca Procaccini, Noah Feldman & Jameel Jaffer

The exchange during this salon was quite exceptional and highly informative as to what role the First Amendment should play when it comes to social media platforms.

Note: The case is still pending en banc review in the Second Circuit.


Texas Drone Law & Press Rights 

This from First Amendment Watch:

An Austin-Texas-based newspaper’s recent attempt to report on air pollution caused by cattle feedlots was temporarily thwarted due to the state’s restrictions on drone usage.

As Texas Observer reporter Christopher Collins explained in a story published on February 13th, the feedlots produce “fecal dust” that enter the air and spread to nearby communities. People living in communities exposed to concentrated animal feeding operations (CAFOs), tend to have higher rates of asthma and respiratory diseases.

See previous story: Visual Journalists Challenge Texas Law Restricting Drones

But when the Texas Observer considered using a drone to photograph one town’s “massive network” of cattle feedlots, the paper discovered that state law prevents media organizations from using that method of news gathering.

Under Texas law, organizations cannot pilot drones above jails, petroleum refineries, sports arenas, and cattle feedlots unless they are real estate companies, engineering firms, or have permission from feedlot operators. (Not a single one of the dozen feedlot operators the Texas Observer contacted gave their permission.)  . . .

Brooklyn Law Review on Incitement

The latest issue of the Brooklyn Law Review consists of a symposium entitled "Incitement at 100-and 50-and Today."

Forthcoming Book on Free Speech Law & Pornography

Lynn Mills Eckert, "Free Speech Law and the Pornography Debate: A Gender-Based Approach to Regulating Inegalitarian Pornography" (Lexington Books, May 2020)

By examining the highly contested legal debate about the regulation of pornography through an epistemic lens, this book analyzes competing claims about the proper role of speech in our society, pornography’s harm, the relationship between speech and equality, and whether law should regulate and, if so, upon what grounds.

In maintaining that inegalitarian pornography generates discursive effects, the book contends that law cannot simply adopt a libertarian approach to free speech. While inegalitarian pornography may not be determinative of gender inequality, it does contribute, reinforce, reflect and help maintain such unfairness. As a result, we can place reasonable gender-based regulations on inegalitarian pornography while upholding our most treasured commitments to dissident speech just as other liberal democracies with strong free speech traditions have done.

Forthcoming Book: The "Battle of Ideas" Versus "The Battle of Feelings" 

Dave Rubin, "Don't Burn This Book: Thinking for Yourself in an Age of Unreason" (Sentinel, April 28, 2020)

From host of The Rubin Report, the most-watched talk show about free speech and big ideas on YouTube right now, a roadmap for free thinking in an increasingly censored world.

The left is no longer liberal.

Once on the side of free speech and tolerance, progressives now ban speakers from college campuses, "cancel" people who aren't up to date on the latest genders, and force religious people to violate their conscience. They have abandoned the battle of ideas and have begun fighting a battle of feelings. This uncomfortable truth has turned moderates and true liberals into the politically homeless class.

Dave Rubin launched his political talk show The Rubin Report in 2015 as a meeting ground for free thinkers who realize that partisan politics is a dead end. He hosts people he both agrees and disagrees with--including those who have been dismissed, deplatformed, and despised--taking on the most controversial issues of our day. As a result, he's become a voice of reason in a time of madness.

Now, Rubin gives you the tools you need to think for yourself in an age when tribal outrage is the only available alternative. Based on his own story as well as his experiences from the front lines of the free speech wars, this book will empower you to make up your own mind about what you believe on any issue and teach you the fine art of:

•  Checking your facts, not your privilege, when it comes to today's most pervasive myths, from the wage gap and gun violence to climate change and hate crimes.
•  Standing up to the mob against today's absurd PC culture, when differences of opinion can bring relationships, professional or personal, to a sudden end.
•  Defending classically liberal principles such as individual rights and limited government, because freedom is impossible without them.

The Progressive Woke Machine is waging war against the last free thinkers in the world. Don't Burn This Book is the definitive account of our current political upheaval and your guide to surviving it.holarshi

Chemerinsky on Justice Kennedy's Free Speech Jurisprudence

Erwin Chemerinsky, "A Free Speech Justice? Only Sometimes," Hastings Law Journal (2019)

The conventional wisdom is that Anthony Kennedy was very much a staunch advocate of free speech on the Supreme Court. To be sure, there were many majority opinions he wrote that advanced the protection of free speech. .  .Yet I believe that the conventional wisdom is incomplete, and frankly, inaccurate. Often Justice Kennedy’s opinions were not on the side of free speech. Often his votes did not advance free speech.

.  .  . I want to make two points. First, when the institutional interests of the government were at stake, Justice Kennedy was not a free speech proponent. Second, some of Justice Kennedy’s opinions and votes that appeared to advance speech, in fact, will lead to less speech.

Amar & Brownstein on Compelled Speech Doctrine

David Amar & Alan Brownstein, "Toward a More Explicit, Independent, Consistent and Nuanced Compelled Speech Doctrine," Illinois Law Review (2020)

Cases involving what the Court calls “compelled speech” are decided haphazardly and inconsistently, without any attempt to formalize the analyses into rules of decision. One resulting and abiding shortcoming of the current state of affairs is that compelled speech has remained essentially an all-or-nothing domain of constitutional decision-making. Based on a somewhat inscrutable and seemingly selective consideration of various factors, compelled speech claims are either embraced and subjected to strict scrutiny review, or rejected as not implicating the right not to be compelled to speak at all. No detailed identification of the circumstances that warrant more or less rigorous standards of review has been recognized.

This lack of rigorous doctrinal structure has led to more compelled-speech litigation and, perhaps more problematically, an increased willingness of courts to expand the scope of the case law in this area. . . . In this Article, we propose to lay out a foundation and direction for developing distinctive compelled speech doctrine. While our analysis and suggestions take account of important judicial holdings in many compelled speech cases, we are not attempting to draw a doctrinal line that connects or explains all of the Court’s decisions in a harmonious or intelligible way. Indeed, after we explain the circumstances under which the specter of government compulsion of speech should be considered very troubling (warranting rigorous review) and those under which it should not (justifying a more flexible standard akin to intermediate level scrutiny or something more deferential still), we will argue that some decisions were wrongly decided.

Law Review Article on the First Amendment and the CFAA Access Provision

YouTube: Stanley Fish on Free Speech

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2019–2020 SCOTUS Term: Free Expression & Related Cases

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