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First Amendment News 263: Kristen Waggoner is the one to watch in First Amendment cases

Kristen Waggoner

Coming soon: Ronald Collins & David Hudson, “The Roberts Court: Its First Amendment Free

Expression Jurisprudence — 2005-2020”

She's the General Counsel for Alliance Defending Freedom. Court watchers may recognize her name — Kristen Waggoner. She served as counsel in National Institute of Family and Life Advocates v. Becerra (2018) and successfully argued Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission (2018).

The lawyer from Scottsdale, Arizona also just got a cert. grant in Uzuegbunam & Bradford v. Preczewski, et al., a campus speech mootness and damages case.

Additionally, Ms. Waggoner is the counsel of record in Arlene’s Flowers Inc. v. Washington, a case that first came up for conference consideration in December of last year and remains on the docket. The issues raised in the case according to SCOTUSblog are:

  1. Whether a state violates a floral designer’s First Amendment rights to free exercise and free speech by forcing her to take part in and create custom floral art celebrating same-sex weddings or by acting based on hostility toward her religious beliefs; and
  2. whether the free exercise clause’s prohibition on religious hostility applies to the executive branch.

Likewise, she is the counsel of record in an abortion clinic buffer zone case, Bruni v. The city of Pittsburgh which is also on the Court's docket. The issues raised in that case according to the petition are:

  1. Whether federal courts have authority to save a state or local law from unconstitutionality by positing a limiting construction that has no state-law basis and contradicts governing authorities’ understanding of their own law.
  2. Whether Pittsburgh’s buffer-zone ordinance violates the Free Speech Clause.

Ms. Waggoner has also testified before Congress on the Religious Freedom and the First Amendment Defense Act. In her testimony she stated:

[B]olstered by Obergefell, governments across the United States feel emboldened to force individuals and organizations to forego their convictions on marriage and human sexuality in order to remain in the public square.

We are witnessing nothing less than the beginning of an ideological cleansing of public life in America. Congress must act to stop the marginalization of many Americans by passing the First Amendment Defense Act (“FADA”).

End of the term news 

Whether the definition of an "automatic telephone dialing system" in the Telephone and Consumer Protection Act of 1991 encompasses any device that can “store” and “automatically dial” telephone numbers, even if the device does not “us[e] a random or sequential number generator.”

While a student at Georgia Gwinnett College, Petitioner Chike Uzuegbunam began distributing religious literature on campus. College officials stopped him because he was outside the 0.0015% of campus where “free speech expression” was allowed. When Chike reserved a free-speech space and again tried to evangelize, officials stopped him because someone complained which, under College policy, con- verted Chike’s speech to “disorderly conduct” (i.e., “disturb[ing] the peace and/or comfort of person(s)”). Facing discipline if he continued, Chike sued. Another student, Petitioner Joseph Bradford, self-censored after hearing how officials mistreated Chike.

Chike and Joseph raised constitutional claims against Respondents’ enforcement of their policies, seeking damages and prospective equitable relief to remedy the censorship and chill. After Respondents changed their speech policies post-filing, mooting all equitable claims, the lower courts held that Chike and Joseph did not adequately plead compensatory damages, and their nominal-damages claims were moot.

Whether the Telephone Consumer Protection Act’s prohibitions on calls made using an automatic dialing system or an artificial or prerecorded voice are unconstitutional content-based restrictions of speech, and if so whether the U.S. Court of Appeals for the 9th Circuit erred in “remedying” that constitutional violation by broadening the prohibitions to abridge more speech.

(1) Whether the First Amendment invalidates a longstanding 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, with the other seats reserved for judges affiliated with the “other major political party”; (2) whether the U.S. Court of Appeals for the 3rd Circuit erred in holding that a provision of the Delaware Constitution requiring that no more than a “bare majority” of three of the state courts may be made up of judges affiliated with any one political party is not severable from a provision that judges who are not members of the majority party on those courts must be members of the other “major political party,” when the former requirement existed for more than 50 years without the latter, and the former requirement, without the latter, continues to govern appointments to two other courts; and (3) whether the respondent, James Adams, has demonstrated Article III standing.

Paul Clement continues to shape the law in the Supreme Court

Paul Clement
Paul Clement

It was a good First Amendment year for Paul Clement, the former United States Solicitor General (2005-2008) and now partner at Kirkland and Ellis. The former law clerk to Justice Scalia has argued over 100 cases before the Supreme Court.

This term alone he scored wins in two cases: Thompson v. Hebdon (political contribution limits) and Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania (ACA case concerning religious or moral objections from providing contraceptive coverage to employees). Then towards the very end of the term, the Justices granted cert. in Facebook, Inc. v. Duguid.

In his cert. petition for the Facebook case Mr. Clement argued:

Congress enacted the Telephone Consumer Protection Act of 1991 (“TCPA”) to prohibit calls made to a cell phone without consent using an “automatic telephone dialing system” (“ATDS”). That prohibition exempts calls made “to collect a debt owed to or guaranteed by the United States” or “made for emergency purposes.” 47 U.S.C. §227(b)(1)(A)(iii). Here, Petitioner was sued for violating this prohibition and defended on the grounds, inter alia, that the prohibition unconstitutionally discriminated on the basis of content and that the text messages at issue here did not involve an ATDS.

The Ninth Circuit agreed that the TCPA was unconstitutional, but denied Petitioner any relief by taking the extraordinary step of rewriting the TCPA to prohibit more speech by eliminating the government-debt- collection exception. To make matters worse, the Ninth Circuit adopted a counter-textual and expansive definition of an ATDS that encompasses any device that can store and automatically dial telephone numbers—even if that device cannot store or produce them “using a random or sequential number generator,” as the statutory definition requires, id. §227(b)(1)(A). . . .

The Court should grant certiorari to bring the Ninth Circuit in line with this Court’s First Amendment jurisprudence.

Coalition of media groups call for the release of police bodycam footage in Floyd case
  • Minnesota v. Lane (motion objecting to limits on access to body-worn camera footage filed by Defendant in support of his dispositive motion). Leita Walker (Ballard Spahr) is the counsel of record.

DOJ’s Bureau of Prison blocking Michael Cohen's book on Trump 

Ryan Goodman over at Just Security is reporting:

On Thursday morning, Michael Cohen, the president’s former lawyer and fixer, was returned to prison. Many readers like myself may have passed over the headlines for this particular event thinking it was unsurprising. After all, Cohen’s reimprisonment followed his apparently being caught on camera at a NYC restaurant in violation of conditions of home confinement. Despite initial headlines, however, the news reports explained a very different and more ominous set of facts. As the New York Times’ Maggie Haberman described, “Cohen imprisonment wasn’t related to NY Post photo of him at restaurant. When he went to switch from furlough to home confinement, he had to sign papers saying no media or publishing a book, which he refused to sign.”

Perhaps due to the flurry of news in the past forty-eight hours or perhaps due to the misperception of why Cohen returned to prison, there has been little to no significant analysis of this development (setting aside stray tweets and the like). That’s despite the availability of the peculiar agreement that Cohen was asked to sign committing not to publish a book. How peculiar is the agreement? Very peculiar. As David C. Fathi, director of the ACLU’s National Prison Project told Just Security, “I have never heard of such a spectacularly overbroad restriction on speech as a condition of probation or supervised release.”

I asked some of the country’s leading First Amendment law experts for their views about the agreement Cohen was told to sign. Their comments are published in full below. They are almost uniform in decrying the condition placed on Cohen by the Bureau of Prisons, an agency under William Barr’s Justice Department. I recommend reading their extensive comments in full, but here are some highlights:

A foremost scholar in First Amendment law, former Provost of the University of Chicago and Professor Geoffrey R. Stone calls the government’s action “patently unconstitutional.” Robert Corn-Revere says it is “an obvious violation of his First Amendment rights.” The ACLU’s Vera Eidelman writes that it is “almost certainly unconstitutional.” Laura R. Handman puts the situation in the context of the political nature of Cohen’s speech. She writes that the government’s action is a “profound affront to the First Amendment … all the more so when the content of what he would share would likely be … information that is particularly vital to an informed public as they decide whether the President merits re-election.” Jameel Jaffer, Executive Director of the Knight First Amendment Institute at Columbia University, had a similar assessment also noting “this gag order is to suppress speech about the president, which is speech at the core of the First Amendment’s concern.” Professor Jane Kirtley writes, “this is a prior restraint, pure and simple, and not only violates Cohen’s rights, but also the right of the public to learn what he has to say.” Professor Burt Neuborne writes that “a flat ban on a federal prisoner writing a book or article is, in my opinion, indefensible.” The only exception was Professor Roy Gutterman who writes that “the terms for house-arrest or home confinement as an alternative to prison might justify these restrictions” and then he raises some questions.


Mauro on prior restraint doctrine & Trump's book lawsuits

Over at the Freedom Forum, Tony Mauro filed this story:

Tony Mauro (credit: T. Mauro)

As President Trump’s lawyers have sought ways to block the distribution of books by his niece Mary Trump and his former national security adviser John Bolton, Trump’s adversaries are invoking a tenet of press freedom that dates back at least four centuries.

The doctrine is called “prior restraint” and is shorthand for the belief that government should almost never be allowed to block or restrain books, newspaper articles or other expressions before they are published. Because of the values of free expression, the theory goes, if any litigation is to be had, it must occur after publication, not before.

Mary Trump’s tell-all book, “Too Much and Never Enough: How My Family Created the World’s Most Dangerous Man,” will soon be widely distributed thanks to a New York appellate ruling that cited the “heavy presumption against prior restraint” and gave the publisher Simon & Schuster the green light.

In the case of John Bolton, whose book, “The Room Where It Happened: A White House Memoir,” is also soon to be released, a federal judge ruled that blocking prior restraints is outweighed by the need to protect classified information in the book. But the judge ruled that with widespread distribution of the book already under way, “the horse is out of the barn” and the federal government “has failed to establish that an injunction will prevent irreparable harm.”

Charles Harder, the lawyer for Trump’s brother Robert, said in a brief arguing against Mary Trump’s book, “The prior restraint doctrine has nothing to do with cases where a speaker has made an enforceable contract.”

Why does the “no prior restraint” axiom loom so large in First Amendment doctrine? In centuries past, governments wielded harsh restraints against the press. Think of the Star Chamber in England in the 15th to 17th centuries. After that period, according to an Indiana Law Review article, legal views changed, to the point that defamation, for example, could be “punished but not prevented.

There's more, Blackstone, Holmes, Near v. Minnesota, Fred Friendly, and the Pentagon Papers case — continued here.

Knight First Amendment Institute challenges policy limiting judges' ability to speak publicly about immigration issues

This from First Amendment Watch:

On July 1st, the National Association of Immigration Judges (NAIJ) sued the Director of the Executive Office for Immigration Review (EOIR) over a policy that limits a judge’s ability to speak publicly, even in his or her personal capacity, on issues related to immigration law.

Knight First Amendment Institute

Filed in the United States District Court for the Eastern District of Virginia Alexandria Division, the complaint alleges that the EOIR’s policy on speaking engagements amounts to an unconstitutional prior restraint on the speech of immigration judges.

“There is an ongoing national debate about the wisdom and fairness of recent changes to immigration laws and policies and about the effect of those changes on the immigration court system,” the complaint said.  “Immigration judges have unique insights to contribute to this discussion. While EOIR has a legitimate interest in promoting the efficiency of the services it performs through its employees, the 2020 Policy is not appropriately tailored to that interest.”

The association of judges is represented by the Knight First Amendment Institute at Columbia University, a First Amendment advocacy group that has filed a number of cases in an effort to secure greater government transparency.

Trump nominates Allen Dickerson to FEC

Headline: 'Does First Amendment let ISPs sell Web-browsing data? Judge is skeptical'

Jon Brodkin over at Ars Technica is reporting that:

The broadband industry has lost a key initial ruling in its bid to kill a privacy law imposed by the state of Maine.

The top lobby groups representing cable companies, mobile carriers, and telecoms sued Maine in February, claiming the privacy law violates their First Amendment protections on free speech and that the state law is preempted by deregulatory actions taken by Congress and the Federal Communications Commission. Maine's Web-browsing privacy law is similar to the one killed by Congress and President Donald Trump in 2017, as it prohibits ISPs from using, disclosing, or selling browsing history and other personal information without customers' opt-in consent. The law took effect on July 1, 2020.

The case is not over, but the ruling today by Judge Lance Walker in US District Court for the District of Maine dealt a major blow to the broadband industry's lawsuit. The plaintiffs representing the broadband industry are America's Communications Association, CTIA, NCTA, and USTelecom. Walker denied the plaintiffs' motion for judgment on the pleadings, criticized the industry's First Amendment argument, and granted Maine's motion to dismiss claims that the state law is preempted by federal law.

The judge agreed with the broadband industry that "plaintiffs' marketing of customer data... is sheltered by the First Amendment," but he added that "not all speech deserves the same level of protection." Commercial speech "is ordinarily accorded less First Amendment protection than are other forms of constitutionally guaranteed expression," he noted. The judge agreed with the Pine Tree State that its privacy law should be "subject to intermediate scrutiny" under a First Amendment analysis, instead of the "strict scrutiny" standard proposed by the broadband industry.

The judge also found that "Plaintiffs' Motion simply fails to clarify how an ill-defined opt-in and opt-out regime would inhibit any protected First Amendment activity; for example, how it might chill them from preparing particular marketing materials for sale to customers. And, they have not begun to bear their burden to show the statute would be unconstitutional in 'all of its applications,' as they must for a facial challenge." These findings will make it harder for ISPs to prove Maine's law violates the First Amendment.

"While Judge Walker allowed the broadband industry's argument that the Maine law violates the First Amendment to proceed, he ruled that the law is not unconstitutional on its face and clearly expressed skepticism that the industry would succeed at trial," Gigi Sohn, a consumer advocate and former Obama-era FCC official, said today. "Judge Walker refused to apply a strict scrutiny standard to the law, instead applying an intermediate First Amendment scrutiny that applies to commercial speech. He also firmly rejected broadband providers' overwrought allegations of harm."


National Coalition Against Censorship on the right to protest during the pandemic

This from the NCAC:

Dissent and protest are protected by the First Amendment to the Constitution, which guarantees freedoms of speech, assembly, and the right to petition the government for a redress of grievances. These rights are fundamental to our democracy. They cannot be sacrificed even, and perhaps particularly, in times of public emergency.

On April 14, 2020, the police department in Raleigh, North Carolina, tweeted, “Protesting is a non-essential activity,” as an explanation for breaking up a protest. As organizations dedicated to protecting civil liberties and the First Amendment, the undersigned groups are deeply disturbed by this statement and other remarks and actions by public officials suggesting that peaceful protest can be outlawed during a national crisis. The ongoing Covid-19 pandemic cannot be used to justify the suspension of First Amendment rights. People must be free to express disagreement with government decisions, even when it involves criticism of essential public health measures.

Upholding First Amendment rights need not be at odds with the government’s authority and obligation to protect public health and safety. The emergency decrees that call for social distancing, wearing of face covers or masks, and limits on the size of public assemblies can regulate the manner in which protests occur. However, regulations should be narrowly tailored to what is necessary to protect public health and cannot be so broad that they ban protest completely or so poorly drafted that they restrict peaceful demonstrations.

Most protesters have been exercising their constitutional rights without threatening the health of their fellow citizens: wearing masks and standing six-feet apart outside hospitals and other places of business to protest inadequate safety precautions; participating in car demonstrations in Arizona, California and Michigan, and launching digital campaigns.

Public officials in Ohio and Michigan have included explicit protections for First Amendment rights in their emergency decrees. Some states have also acknowledged information-gathering and reporting as “essential services.”

We urge all public officials to recognize their obligation to defend First Amendment rights while they protect public safety. These rights are critically important during uncertain times like these.


National Coalition Against Censorship
American Booksellers for Free Expression
Americans for Prosperity Foundation
Association of American Publishers
The Authors Guild
The Buckeye Institute
Caesar Rodney Institute
The Center for Media and Democracy
Civil Liberties Defense Center
Coalition for Policy Reform
The DKT Liberty Project
Defending Rights & Dissent
First Amendment Lawyers Association
Foundation for Individual Rights in Education (FIRE)
Free Press
Free Speech Coalition
Freedom Forum
Freedom Foundation of Minnesota
Freedom to Read Foundation
Idaho Freedom Foundation
Institute for Free Speech
Kurt Vonnegut Museum and Library
Mackinac Center for Public Policy
Mississippi Center for Public Policy
PEN America
PEN America Children’s and Young Adult Books Committee
Restore The Fourth, Inc.
United for Missouri
Woodhull Freedom Foundation
David A. Schulz, Media Freedom & Information Access Clinic at Yale Law School *institution listed for identification purposes only

New book on crafting dissent

Pussyhats, typically crafted with yarn, quite literally created a sea of pink the day after Donald J. Trump became the 45thpresident of the United States in January 2017, as the inaugural Women’s March unfolded throughout the U.S., and sister cities globally.

But there was nothing new about women crafting as a means of dissent.

"Crafting Dissent: Handicraft as Protest from the American Revolution to the Pussyhats" is the first book that demonstrates how craft, typically involving the manipulation of yarn, thread and fabric, has also been used as a subversive tool throughout history and up to the present day, to push back against government policy and social norms that crafters perceive to be harmful to them, their bodies, their families, their ideals relating to equality and human rights, and their aspirations.

At the heart of the book is an exploration for how craft is used by citizens to engage with the rhetoric and policy shaping their country’s public sphere.

Forthcoming book on philosophy of protest

Towards a Philosophy of Protest: Dissent, State Power, and the Spectacle of Everyday Life is an inquiry into the nature of protest, legislative efforts at its criminalization, and the common good. Using the method of montage, Clayton Bohnet juxtaposes definitions, etymologies, journalism on contemporary events, philosophy, sociology, mainstream and social media content to illuminate rather than obscure the contradictions in our contemporary understanding of dissent and state power. By problematizing the identification of the good of a political community with the good of the economy, Bohnet develops a political ontology of a people who find their values subordinated to a good identified with the smooth flow of traffic, the forecasts of capital, and the predictability of everyday life.

A text populated more with questions than authoritative answers, this book asks readers to think through particular impasses involving protest and the possibility of egalitarian, participatory politics, such as the risks taken and courage involved in a society that places the expression of political truths above the collective benefits of the well-tempered economy and the dangers of protesting, of dissent, in an era that refers to protesters as economic terrorists.

Forthcoming book on paparazzi & freedom of the press

Restricting Los Angeles Paparazzi: California’s Legal Efforts Impacting Free Press Rights is a detailed analysis of California's anti-paparazzi laws aimed at protecting celebrities' privacy. Joshua N. Azriel provides an ethnographic, First Amendment-based critique of the state's privacy and anti-harassment laws and discusses the broader implications of these laws on free press rights. Azriel conducted fieldwork acting as a paparazzo taking photos of celebrities and interviewed paparazzi directly about whether they comply with the laws, providing readers with insight into the challenges and ethics of the paparazzi industry and firsthand perspectives of photographers in the field. Scholars of media studies, legal studies, and sociology will find this book particularly useful.

New scholarly article on student speech law

David L. Hudson

More than fifty years ago, the U.S. Supreme Court famously proclaimed in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” In subsequent decades, the Supreme Court reduced the level of free-speech protections for public school students, but Tinker is still the lodestar decision.

There remain several areas of uncertainty regarding the scope of student (K–12) First Amendment rights. This Article addresses three of those main areas: (1) whether a student’s speech can be limited by the unruly behavior of listeners; (2) when student speech invades or infringes on the rights of other students; and (3) when school officials can punish students for off-campus, online speech. All three areas have led to much disagreement and uncertainly among courts, school officials, parents, and commentators.

New scholarly article on cyber harassment & free speech

This Article briefly introduces the phenomena of cyber harassment, particularly as experienced by its targets. Cyber harassment, as broadly understood herein, often involves substantial harms to its targets. The pervasiveness and frequent severity of the harms of cyber harassment have prompted the development of a complex regulatory network for the various forms of cyber harassment. The legal regulation of cyber harassment is, however, often thought, largely mistakenly, to be limited by the constitutional free speech interests of the cyber harassers.

New on YouTube: Noam Chomsky (91 years old) on free speech 

New on YouTube: 'The Hate Speech Debate: Should Free Speech Be Limited?'

 A spirited and informative exchange between Nadine Strossen and Dan Shefet

New on YouTube Nigel Farage on cancel culture

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