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First Amendment News 273: Religious conscience takes center stage in Supreme Court's First Amendment docket
For those who missed it, FAN 272 had an extensive list of new and forthcoming 2020-21 books.
Philadelphia has decided that the Archdiocese of Philadelphia can believe what it likes about marriage, so long as it speaks and acts to the contrary. Such a conflict was anticipated in Obergefell, was exacerbated by the Third Circuit’s view of Smith, has forced multiple religious foster agencies to close . . .
Elevating religious belief as the controlling factor governing obligations to others could displace non-discrimination laws and rules applicable not only to all government contracts and grants, but also to government employees and the private sector.
So read excerpts from two of the many briefs filed in Fulton v. City of Philadelphia, which will be argued next month before the Supreme Court, with Mark Rienzi representing the Petitioners and Neal Katyal arguing on behalf of the Respondent. (Mary Bonauto filed an amicus brief in support of the City of Philadelphia.) The Fulton case is one of three First Amendment cases the Court has agreed to review this term.
As the Senate prepares to hold confirmation hearings for Judge Amy Coney Barrett, one of the key issues they will have to consider is how to reconcile the tension between the views of Mr. Rienzi and Ms. Bonauto as quoted above. That is: How should the justices strike a balance between religious conscience and LGBTQ rights?
Much the same is at issue in Arlene’s Flowers Inc. v. Washington (the floral designer/same-sex weddings case), which lingers on the Court's cert. docket. The lead counsel arguing on behalf of the Petitioner in Arlene's Flowers is Kristen Waggoner, who successfully argued National Institute of Family and Life Advocates v. Becerra (2018) and Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission (2018).
Three cases to be argued this term
The Foster Care Non-Discrimination and Religious Conscience Case: Fulton v. City of Philadelphia
- Issues, according to SCOTUSblog: "Whether free exercise plaintiffs can only succeed by proving a particular type of discrimination claim — namely that the government would allow the same conduct by someone who held different religious views — as two circuits have held, or whether courts must consider other evidence that a law is not neutral and generally applicable, as six circuits have held; (2) whether Employment Division v. Smith should be revisited; and (3) whether the government violates the First Amendment by conditioning a religious agency’s ability to participate in the foster care system on taking actions and making statements that directly contradict the agency’s religious beliefs."
- Argument Date: Nov. 4, 2020
- Counsel for Petitioners: Mark L. Rienzi (also lead counsel in McCullen v. Coakley (2014))
- Counsel for Respondent: Neal Kumar Katyal
- Lower Court Ruling: Fulton v. Philadelphia (3rd. Cir., 2019) (denying FA claims)
- Amicus Brief in Support of Petitioners: United States (Noel J. Francisco, Solicitor General)
- Amicus Brief in Support of Respondent: Brief amici curiae of GLBTQ Legal Advocates & Defenders and 27 Other LGBTQ Advocacy Groups filed (Mary L. Bonauto)
The Art. III Standing and Judicial Elections Case: Carney v. Adams
- Issues, according to SCOTUSblog: "(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."
- Argument Date: Oct. 5, 2020
- Counsel for Petitioner: Michael W. McConnell (with Randy J. Holland et al.)
- Counsel for Respondent: David L. Finger
- Lower Court Ruling: Adams v. Governor of Delaware (3rd. Cir. 2019) (sustaining FA claim)
- Amicus Brief in Support of Petitioner: Brief of Former Chief Justices of Delaware (Virginia A. Seitz)
- Amicus Brief in Support of Petitioner: Brief of 19 Professors (Rodney A. Smolla)
- Amicus Brief in Support of Respondent: Cato Institute (Eugene Volokh)
- Amicus Brief in Support of Respondent: Public Citizen (Kaitlin Leary)
The Telephone Consumer Protection Act and Robo-Call Case: Facebook, Inc. v. Duguid
- Issues, according to SCOTUSblog: "Whether the definition of an 'automatic telephone dialing system' in the Telephone 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.'"
- Argument Date: Dec. 8, 2020
- Counsel for Petitioner: Paul Clement (see FAN 268, "The Clement cure for the cure")
- Counsel for Respondent United States: Noel J. Francisco (Solicitor General)
- Lower Court Ruling: Duguid v. Facebook, Inc. (9th Cir. 2019) (denying FA claim)
Other cases on the cert. docket
Some of the other First Amendment cases on the Court's docket involve matters relating to the following topics:
- campaign finance laws;
- right to petition;
- personal liability related to protests;
- public college speech regulations;
- off-campus political speech;
- sexual harassment;
- true threats;
- regulation of billboards on private property;
- regulation of commercial signs;
- public union fees;
- public employee speech;
- buffer zones and abortion clinics;
- revenge porn;
- and even a petition to reconsider, yet again, an established precedent.
Judge Barrett on free speech
- "Three Seventh Circuit Cases Showcase Judge Amy Coney Barrett’s Willingness to Expand Free Speech Protections in Certain Contexts," Free Speech Institute (Sept. 23)
Judge Barrett has written or joined an opinion in at least three free speech-related cases worthy of commentary. We continue to review other cases in which Judge Barrett participated and may release further analyses.
- Adams v. Bd. of Educ. of Harvey Sch. Dist. 152, 968 F.3d 713 (7th Cir. 2020) (Easterbrook, J.) (3–0 decision)
- Lett v. City of Chicago, 946 F.3d 398 (7th Cir. 2020) (3-0 decision)
- Smadi v. True, 783 F. App’x 633 (7th Cir. 2019) (per curiam)
Barrett authored the opinion in only one of those cases. Reading them together, however, Judge Barrett may be willing to expand free speech protections in limited but nevertheless important contexts. . . .
- "Recent Panel Ruling Involving Judge Barrett Rejects First Amendment Claim but No Firm Conclusions Can Be Drawn from the Opinion," Free Speech Institute (Sept. 29)
Institute for Free Speech releases report on Citizens United
The Institute for Free Speech recently released a report written by Alec Greven entitled "Has Citizens United Increased Corruption? An Examination of Public Corruption Prosecutions." A summary of the report is below:
Since the moment the decision was reached in 2010, Citizens United v. FEC has been one of the most controversial rulings in recent Supreme Court history. The decision, which found that corporations, including nonprofit corporations, and labor unions cannot be prohibited from spending money on independent political advocacy, is a victory for free political expression. The government cannot and should not be able to ban a political pamphlet, movie, or book, simply “based on the corporate identity of the speaker.”
Nevertheless, the backlash to the decision was, and continues to be, furious. Citizens United, according to some of its detractors, paved the way for political corruption by elevating well-financed interests over regular citizens. Fred Wertheimer, longtime advocate for campaign finance regulation, epitomized the opposition to Citizens United, declaring shortly after the decision that “this opinion will not stand the test of time or history… it is completely inconsistent with the interest of the American people in having a government free from corruption.”
Ten years after the decision, this report asks if such claims about Citizens United were correct. Did the Supreme Court’s ruling that corporations and unions can speak without limit and contribute unlimited amounts to finance independent political expenditures increase the amount of corruption in our democracy?
We find no evidence to support this claim. A comparison of public officials charged with corruption offenses by the U.S. Department of Justice nine years before and nine years after the Court’s decision show a decline rather than an increase in corruption. Further, states that were most affected by Citizens United saw a larger decrease in corruption than states unaffected by the decision.
FIRE releases latest survey on college students & free speech
- "Largest ever free speech survey of college students ranks top campuses for expression," FIRE (Sept. 29)
The Ivy League offers students sterling credentials, but is miserly when it comes to offering them free speech — try the University of Chicago instead. That’s just one of the findings from the first-ever rankings of the free speech climates at 55 of America’s largest and most prestigious campuses, based on the largest free speech survey of college students ever performed.
“2020 College Free Speech Rankings: What’s the Climate for Free Speech on America’s College Campuses?” features the opinions of the roughly 20,000 students surveyed by the Foundation for Individual Rights in Education, College Pulse, and RealClearEducation.
Other highlights: Seven of the top 10 colleges for free speech are public, and only one of the top 10 is in the Northeast, while the bottom 10 includes many schools that repeatedly make headlines for campus censorship.
Notably, eight of the top 10 institutions in the study earn the highest, “green light” rating for their free speech policies in FIRE’s annual Spotlight on Speech Codes report.
The top five colleges for free speech:
- The University of Chicago (Green)
- Kansas State University (Green)
- Texas A&M University (Green)
- University of California, Los Angeles (Green)
- Arizona State University (Green)
The worst colleges for free speech:
- Syracuse University (Yellow)
- Dartmouth College (Yellow)
- Louisiana State University (Red)
- University of Texas (Red)
- DePauw University (Red)
Bollinger & Graham on Trump & Twitter
- Lee Bollinger & Donald Graham, "Trump’s assault on Twitter is an attack on the First Amendment," Washington Post (Sept. 29)
Hudson on Justice Ginsburg & free speech
- David L. Hudson, Jr., "Justice Ruth Bader Ginsburg and the First Amendment," The Free Speech Center (Sept. 28)
'Mighty Ira' documentary
FAN 269 profiled the documentary, ‘Mighty Ira: A Civil Liberties Story.’
The documentary will be available to stream Oct. 2-9, with a live virtual Q&A with subject Ira Glasser and the filmmakers on Oct. 6, 7:30 p.m. EDT. Click here for tickets to the film and Q&A.
Dir. Nico Perrino, Aaron Reese, Chris Maltby | 98 min. | US | 2020
Ira Glasser is one of America’s unsung champions of civil rights and liberties. As the leader of the American Civil Liberties Union for 23 years, he transformed the organization from a small “mom-and-pop” operation on the verge of bankruptcy into a civil liberties juggernaut with offices in every state and a $30 million endowment. Amid high-profile controversies surrounding free speech and racial equality—and on the occasion of the ACLU’s centennial—Ira reflects on his life at the forefront of defending the rights of all Americans, from civil rights leaders to neo- Nazis.
This is a virtual, online-only event. Stream the film starting Friday, Oct. 2 at 10 a.m. EDT. Film will be available until Friday, Oct. 9 at 11:59 p.m. EDT. The film is only available in the U.S.
New book by Ellis Cose
- Ellis Cose, "The Short Life and Curious Death of Free Speech in America" (Amistad, Sept. 15)
Free speech has long been one of American's most revered freedoms. Yet now, more than ever, free speech is reshaping America’s social and political landscape even as it is coming under attack. Bestselling author and critically acclaimed journalist Ellis Cose wades into the debate to reveal how this Constitutional right has been co-opted by the wealthy and politically corrupt.
It is no coincidence that historically huge disparities in income have occurred at times when moneyed interests increasingly control political dialogue. Over the past four years, Donald Trump’s accusations of “fake news,” the free use of negative language against minority groups, “cancel culture,” and blatant xenophobia have caused Americans to question how far First Amendment protections can—and should—go.
Cose offers an eye-opening wholly original examination of the state of free speech in America today, litigating ideas that touch on every American’s life. Social media meant to bring us closer, has become a widespread disseminator of false information keeping people of differing opinions and political parties at odds. The nation—and world—watches in shock as white nationalism rises, race and gender-based violence spreads, and voter suppression widens. The problem, Cose makes clear, is that ordinary individuals have virtually no voice at all. He looks at the danger of hyper-partisanship and how the discriminatory structures that determine representation in the Senate and the electoral college threaten the very concept of democracy. He argues that the safeguards built into the Constitution to protect free speech and democracy have instead become instruments of suppression by an unfairly empowered political minority.
But we can take our rights back, he reminds us. Analyzing the experiences of other countries, weaving landmark court cases together with a critical look at contemporary applications, and invoking the lessons of history, including the Great Migration, Cose sheds much-needed light on this cornerstone of American culture and offers a clarion call for activism and change.
- Nadine Strossen & Ellis Cose in Dialogue, Lewes Public Library (Zoom video, Sept. 21)
- Ellis Cose, "We're trapped in an obscene distortion of democracy. But we don't have to be," USA Today (Sept. 13)
Four forthcoming scholarly articles
- Joseph Blocher & Bardia Faghihvaseghi, "True Threats and the Second Amendment," The Journal of Law, Medicine & Ethics (forthcoming 2020)
- Richard A. Wilson & Molly K. Land, "Hate Speech on Social Media: Towards a Context-Specific Content Moderation Policy," Connecticut Law Review (forthcoming 2020)
- Eric Goldman, "How Section 230 Enhances the First Amendment," American Constitution Society (Sept. 2020)
- Ashley Fox & Victoria Ekstrand, "Regulating the Political Wild West: State Efforts to Disclose Sources of Online Political Advertising," Notre Dame Journal of Legislation (forthcoming 2020)
- Kate Klonick, "The Facebook Oversight Board: Creating an Independent Institution to Adjudicate Online Free Expression," Yale Law Journal (2020)
- Alexandra Genrod, "International Megan’s Law as Compelled Speech," Michigan Law Review (2020)
- Nelson Tebbe, "A Democratic Political Economy For the First Amendment," Cornell Law Review (2020)
- Note, "Two Models of the Right to Not Speak," Harvard Law Review (2020)
- Eugene Volokh, "Mother's 'Islamophobic' Remarks About School Board Member Yield Ban from School District Property," The Volokh Conspiracy (Sept. 28)
- "Federal Judge Blocks Part of Trump’s Ban on TikTok," First Amendment Watch (Sept. 28)
- "Louisiana Supreme Court Judge Targets Critics with Defamation Suits," First Amendment Watch (Sept. 25)
- Tom Hays, "Judge dismisses suit against Fox over Trump affair story," The Free Speech Center (Sept. 24)
- "Executive order on combating race and sex stereotyping could chill academic freedom," FIRE (Sept. 24)
- "Judge agrees to delay U.S. government restrictions on WeChat," Associated Press (Sept. 22)
- Ann Schmidt, "Vegan food company files First Amendment suit against Oklahoma over labeling regulations," Fox News (Sept. 19)
- "Justice Dept.: Sedition charge may apply to protest violence," Associated Press (Sept. 18)
- Nick Niedzwiadek, "Scott Atlas lawyer threatens defamation suit over critical Stanford open letter," Politico (Sept. 17)
- Talmage Boston, "The Clash of the Titans," Washington Independent Review of Books (Sept. 7) (reviewing "The Presidents vs. the Press" by Harold Holzer)
2020-2021 SCOTUS term: Free expression & related cases
- Facebook, Inc. v. Duguid (OA: 12-08-20) (Telephone Consumer Protection Act robocall case)
- Carney v. Adams (OA: 10-05-20) (standing/judicial elections)
- Fulton v. City of Philadelphia (OA: 11-04-20) (religious expression: free exercise & free speech claims)
- City of Sacramento, California v. Mann
- Hurchalla v. Lake Point Phase
- Trump v. Knight First Amendment Institute
- Stockman v. United States
- Lieu v. Federal Election Commission
- Hunt v. Board of Regents of the University of New Mexico
- Living Essentials, LLC v. Washington
- Evans v. Sandy City, Utah
- Bruni v. City of Pittsburgh
- Austin v. Illinois
- Mckesson v. Doe
- Reisman v. Associated Faculties of the University of Maine
- Institute for Free Speech v. Becerra
- Americans for Prosperity Foundation v. Becerra
- Thomas More Law Center v. Becerra
- Arlene’s Flowers Inc. v. Washington
- Uzuegbunam & Bradford v. Preczewski, et al (nominal damages and mootness in campus speech context) (cert. granted)
- National Association of Broadcasters v. Prometheus Radio Project (RE: Section 202(h) of the Telecommunications Act of 1996) (petition pending)
- Federal Communications Commission v. Prometheus Radio Project (RE: FCC cross-ownership restrictions) (petition pending)
Last scheduled FAN
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