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First Amendment News 280: David Cole weighs in on Fulton v. City of Philadelphia and the future of First Amendment jurisprudence

David Cole (ACLU)

"A case before the Supreme Court tests whether its conservative justices will violate their long-standing constitutional principles in order to expand religious liberty."  — David Cole

Last week the Supreme Court heard oral arguments in Fulton v. City of Philadelphia. The three issues in the case according to SCOTUSblog are:

[(1)] 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.

As to the third claim, the Petitioners alleged that their First Amendment rights were violated owing to “unconstitutional conditions” placed “on [their] free speech and religious exercise [rights, which] depart[ed] from this Court’s decisions,” including its holding in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission (2018).

While the case is primarily about free exercise rights, portions of it concern First Amendment free speech jurisprudence as evidenced by a recent New York Review of Books article written by David Cole, the national litigation director of the ACLU. The article is titled “A New Assault on Marriage Equality” (Dec. 3). On both the free exercise and free speech fronts, Cole has authored what is likely to be one of the most insightful pieces ever to be written on the case, especially when it comes to First Amendment jurisprudence writ large.

As Cole sees it, the Petitioner, Catholic Social Services (CSS), "[a]t bottom, urges that its religious liberty should take precedence over the rights of same-sex couples to be treated equally, even if that results in denying children the care they need from fully qualified families." To advance his argument, Cole proffers three arguments.

Three basic tenets of conservative jurisprudence 

Cole maintains that in order to sustain CSS's claims, the Court's conservative jurists would have to set aside three basic tenets of conservative constitutional jurisprudence:

  1. The Constitution's limitation to negative rights: "Masterpiece Cakeshop challenged a regulation of private business, while CSS objects to the terms of a government contract voluntarily entered into. . . . The first conservative principle at odds with CSS's claim is the notion that the Constitution confers negative rights, not positive entitlements." (emphasis added.) [See e.g. Regan v. Taxation with Representation (1983) and Harris v. McRae (1980).]
  2. The state's authority to set the terms of its own business: The second conservative principle at odds with CSS's claim "is that when the government is managing its own affairs, as opposed to exercising sovereign power to regulate private activity, it must have broad leeway to set the terms." [See e.g. Rust v. Sullivan (1991).]
  3. The notion that a law's disparate impact is insufficient to violate the Constitution: Conservative jurists "have long insisted that the Constitution prohibits only government actions that are intentionally or explicitly targeted at a protected right, not government practices that merely have an effect on that right." [see e.g. McCleskey v.  Kemp (1987) and Personnel Administrator of Massachusetts v. Feeney (1979)] If the Court were to sustain CSS's claims, "[v]virtually any government contract would be subject to a constitutional challenge by anyone who claims a religiously-based objection to adhering to its terms."

Other views

Justices hear anti-robocalling case

Yesterday the Court heard oral arguments in Facebook, Inc. v. Duguid, the case involving the federal anti-robocalling law known as the Telephone Consumer Protection Act (TCPA).

Last term, in Barr v. American Association of Political Consultants Inc., the Justices set aside a section of the TCPA on First Amendment grounds, though its ruling was a complicated one. In the Facebook case, the Court will decide the reach of the law mindful of certain First Amendment issues.

As in Barr, Paul Clement is representing the petitioner in Facebook.


Non-media speakers & Oregon defamation law

This from Eugene Volokh over at the Volokh Conspiracy:

We've just filed a friend-of-the-court brief asking the Oregon Supreme Court to protect such equal rights, and overturn Oregon precedent that denies such rights.

Here's the heart of the amicus brief, in Lowell v. Wright, filed on behalf of:

  • the Institute for Free Speech and the Electronic Frontier Foundation;
  • Oregon law professors William Funk (Lewis & Clerk), Ofer Raban (U. of Oregon), and Kyu Ho Youm (U. of Oregon); and
  • bloggers Prof. Glenn Harlan Reynolds, Howard Bashman, SCOTUSblog, and me.

(Many thanks to Owen Yeates of the Institute for Free Speech, who is our local counsel, to Sam Gillen, a UCLA law student who worked on the brief with me, and of course to Scott and Cyan Banister, for generously supporting our UCLA Amicus Brief Clinic.)


This case presents three important related questions:

(1) Does Oregon law unconstitutionally deny ordinary Oregonians the protections offered by Gertz v. Robert Welch, Inc., 418 U.S. 323, 349 (1974), which limits presumed damages in libel cases brought by private figures?

(2) Does Oregon law unconstitutionally discriminate in this respect against ordinary speakers, denying them the same First Amendment rights that the institutional media enjoy?

(3) Is it unsound for Oregon law to differ from the Ninth Circuit precedent that covers virtually identical lawsuits that happen to be within the federal courts' diversity jurisdiction?

The appellate court below, citing Wheeler v. Green, 286 Or 99 (1979), held that the First Amendment only requires proof of "actual malice" to recover presumed damages "in defamation actions brought by private parties against media defendants." Lowell v. Wright, 306 Or App 325, 347 (2020)(emphasis in original). But this analysis is not correct; to the extent Wheelerso holds, it fails to properly protect the First Amendment rights of nonmedia speakers.

This Court should grant review for three related reasons:

    1. This Court's holding in Wheeler created a First Amendment double standard that conflicts with subsequent United States Supreme Court decisions. The U.S. Supreme Court has refused to create any media-nonmedia distinction, both in libel cases and in First Amendment cases. And, as that Court has said, this equal treatment is especially sensible in the internet era. Media participation has become increasingly decentralized and commonplace, making it impossible to draw meaningful distinctions between media and nonmedia speakers. And even if such distinctions were possible, First Amendment values are better served by treating both types of speakers equally.
    2. Oregon's rule departs from the view of the federal circuit courts. All seven circuits to consider the question presented here have held that the First Amendment applies equally to media and nonmedia speakers in defamation actions; six of those circuits, including the Ninth Circuit, held this after Wheeler was decided. Oregon's conflict with the Ninth Circuit is especially troublesome because it makes the First Amendment standard for Oregon defamation cases turn on whether the case is in state or federal court.
    3. The Wheeler rule is also an aberration among state courts. Twenty state courts treat media and nonmedia speakers equally in defamation cases; only a few discriminate among them. Just last year, the Minnesota Supreme Court—one of the few that had endorsed a media-nonmedia distinction—joined the prevailing approach in treating all speakers equally. This Court should also take a fresh look at Wheeler, in light of the developments since 1979.

And this re the media vs non-media dichotomy:

Indeed, the amici exemplify how blurry the media-nonmedia line would have to be:

- The Institute for Free Speech and the Electronic Frontier Foundation are not usually thought of as "media," but they maintain web sites ( and on which they publish their views to the world, just as online magazines do.

- Howard Bashman is a lawyer, but his How Appealing blog is likely the nation's leading news source related to appellate litigation.

- SCOTUSblog is published by lawyers, but it has become the nation's leading news source on the Supreme Court.

- Reynolds publishes the InstaPundit blog, one of the leading political and public policy blogs in the country; he has also often written in newspapers such as USA Today and the New York Post, and has sometimes excerpted material from those articles on his blog.

- Volokh publishes the Volokh Conspiracy blog, also a leading blog on law; for some years it was independently hosted but since 2014 has been hosted at mainstream media sites (the Washington Post and then Reason magazine).

- Youm and Volokh publish their views to the public via Twitter, at @MarshallYoum and @VolokhC.

- And Profs. Funk, Raban, Youm, Reynolds, and Volokh have regularly conveyed their analyses to lawyers, judges, and academics by publishing law review articles.

How can the law sensibly and fairly decide which of the amici are "the media" (at least for certain purposes) and which are not? . . .


  • Owen Yeates, Institute for Free Speech
  • Eugene Volokh, UCLA School of Law First Amendment Clinic

Forthcoming: Two books on Morris Ernst

In the 1930s and ’40s, Morris Ernst was one of the best-known liberal lawyers in the United States. An eminent attorney and general counsel of the ACLU for decades, Ernst was renowned for his audacious fights against literary and artistic censorship. He successfully defended Ulysses against obscenity charges, litigated groundbreaking reproductive rights cases, and supported the widespread broadening of protections for sexual expression, union organizing, and public speech. Yet this “human dynamo,” as friends called him, was also a man of stark contradictions, who also waged a personal battle against Communism, defended a foreign autocrat, and aligned himself with J. Edgar Hoover’s inflammatory crusades.

Arriving at a moment when issues of privacy, artistic freedom, and personal expression are freshly relevant, The Rise and Fall of Morris Ernst, Free Speech Renegade brings this singularly complex figure into a timely new light. As Samantha Barbas’s eloquent and compelling biography makes ironically clear, Ernst both transformed free speech in America and inflicted damage to the cause of civil liberties.

Drawing on Ernst’s voluminous cache of publications and papers, Barbas follows the life of this singular idealist from his pugnacious early career to his legal triumphs of the 1930s and ’40s and later-life turn toward zealous anti-communism. As she shows, today’s challenges to free speech and the exercise of political power make Morris Ernst’s battles as pertinent as ever.

A rich account of 1920s to 1950s New York City, starring an eclectic mix of icons like James Joyce, Margaret Sanger, and Alfred Kinsey―all led by an unsung hero of free expression and reproductive rights: Morris L. Ernst.

Prof. Brett Gary

At the turn of the twentieth century, the United States was experiencing an awakening. Victorian-era morality was being challenged by the introduction of sexual modernism and women's rights into popular culture, the arts, and science. Set during this first sexual revolution, when civil libertarian-minded lawyers overthrew the yoke of obscenity laws, Dirty Works focuses on a series of significant courtroom cases that were all represented by the same lawyer: Morris L. Ernst.

Ernst's clients included a who's who of European and American literati and sexual activists, among them Margaret Sanger, James Joyce, and Alfred Kinsey. They, along with a colorful cast of burlesque-theater owners and bookstore clerks, had run afoul of stiff obscenity laws, and became actors in Ernst's legal theater that ultimately forced the law to recognize people's right to freely consume media.

In this book, Brett Gary recovers the critically neglected Ernst as the most important legal defender of literary expression and reproductive rights by the mid-twentieth century. Each chapter centers on one or more key trials from Ernst's remarkable career battling censorship and obscenity laws, using them to tell a broader story of cultural changes and conflicts around sex, morality, and free speech ideals.

Dirty Works sets the stage, legally and culturally, for the sexual revolution of the 1960s and beyond. In the latter half of the century, the courts had a powerful body of precedents, many owing to Ernst's courtroom successes, that recognized adult interests in sexuality, women's needs for reproductive control, and the legitimacy of sexual inquiry. The legacy of this important, but largely unrecognized, moment in American history must be reckoned with in our contentious present, as many of the issues Ernst and his colleagues defended are still under attack eight decades later.


Forthcoming: Book on political cartoons

Abram & White on constitutionalization of tort liability

Prof. Kenneth S. Abraham

To what extent does the First Amendment impose limits on the permissible scope of tort liability? Until recently, the clear answer would have been, “only under very limited circumstances.” During the last few decades, however, the First Amendment has been so greatly expanding its empire that giving this answer is no longer possible. “All bets are off” would be a more accurate answer because the forms of speech to which the Supreme Court has extended First Amendment protection have become impressively broad. Although existing First Amendment restrictions on the permissible scope of tort liability currently are limited, the very existence of those restrictions confirms that many torts involving speech potentially are subject to First Amendment protection. And many torts do involve speech—the duty to warn about the dangers of prescription drugs, fraud, and even some forms of simple negligence are just a few examples.

Prof. G. Edward White

If the First Amendment of the future limited all or even many of these different constitutionally unprotected forms of tort liability, then its scope would be pervasive. We contend, however, that neither existing First Amendment doctrine nor sensible constitutional policy supports extending free speech protection to torts that are accomplished through speech, except in extremely narrow circumstances. Extending First Amendment protection to such torts would aggravate what we argue are two of the principal risks posed by First Amendment imperialism: the erosion of the cultural distinction between truth and falsity, and devaluation of the status of speech about matters of public concern. Our contention is that most of; the forms of speech involved in torts that are accomplished through speech currently are, and should remain, excluded from First Amendment protection. To support this contention, we examine the First Amendment’s extension to previously unprotected forms of speech over the last three-quarters of a century, compare the new First Amendment protections to the doctrinal elements of a series of torts that always or often are accomplished through speech, and argue that it would make little sense, as a matter of tort or constitutional law, to restrict liability for those torts on First Amendment grounds.

Eight new or forthcoming scholarly articles

Opening: Legal director for the Institute for Free Speech – Washington, DC or virtual office

The Institute for Free Speech anticipates the need for a highly experienced attorney to direct our litigation and legal advocacy. In September, President Trump announced the nomination of our longtime Legal Director to the Federal Election Commission. In late October, the President nominated two others to fill the remaining vacancies on the Commission and a confirmation hearing was held in mid-November. After the Committee acts to approve the nominations, which may occur early in December, the Institute for Free Speech will move forward with interviewing applicants.

The Legal Director will direct our litigation and legal advocacy, lead our in-house legal team, and manage and expand our network of volunteer attorneys.

The Legal Director must have extensive litigation experience and a broad background in legal advocacy. Ideally, the Legal Director will have deep First Amendment or constitutional law expertise. Familiarity with campaign finance or lobbying law is a significant plus. The Legal Director will work with senior management to set organizational priorities. The position reports directly to our President.

As a senior legal position with a leading nonprofit organization, it requires substantial travel (post-pandemic, we estimate 10-20% for the DC-based Legal Director), significant working hours, and the ability to act autonomously.

A strong preference will be given to candidates who can work in our Washington, D.C. headquarters. However, we will consider exceptionally strong candidates living and working virtually from anywhere in the country. In addition to litigation-related or advocacy-related travel, a virtual candidate would be required to travel for regular week-long visits to IFS’s headquarters after the pandemic’s impact has receded.

For more information, go here.

New on YouTube: Free speech debate with Lukianoff and Fish

Are universities still a home to the free and robust exchange of competing ideas? Is freedom of expression being curtailed at universities today? The University of San Diego's Center for Ethics, Economics, and Public Policy hosted this 2018 debate exploring free speech in higher education, featuring debaters Greg Lukianoff, President of the Foundation for Individual Rights in Education (FIRE), and Stanley Fish, Professor at Florida International University.

The moderator for the debate was USD professor Matt Zwolinski. This debate took place March 8, 2018 at the University of San Diego's Center for Ethics, Economics, and Public Policy. The event was sponsored by the Institute for Humane Studies.


So to Speak Podcast on book burning

On today’s episode of So to Speak: The Free Speech Podcast, host Nico Perrino is joined by Richard Ovenden to discuss his new book, “Burning the Books: A History of the Deliberate Destruction of Knowledge.”

Ovenden is the Director of the Bodleian Libraries at the University of Oxford and a Fellow of Balliol College. In 2019, he was awarded the Order of the British Empire.

More in the news

2020-2021 SCOTUS term: Free expression & related cases

Cases decided 

  • Mckesson v. Doe (per curium, 7-1 with Thomas, J., dissenting) (judgment vacated and remanded to 5th Cir.)

Cases argued

Cert. granted

Pending petitions

Cert. denied

First Amendment-related 

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