Ronald London, a highly skilled and savvy First Amendment lawyer with years of experience, has left Davis Wright Tremaine to head FIRE's Faculty Legal Defense Fund.
Among other things, Mr. London, a Georgetown Law graduate, worked with Robert Corn-Revere for over two decades in litigating a variety of important free expression cases. For example, they worked together on Motion Picture Association of America v. FCC (2002), where the D.C. Circuit struck down the FCC's video description rules, and also on the indecency cases where they represented the petitioners in Fox Television Stations v. FCC and in CBS Corp. v. FCC. Additionally, they were counsel for the petitioners in Woodhull Freedom Foundation v. United States (2020) and Pen America v. Trump (2021).
London's law firm practice included representing clients in First Amendment, media and communications, privacy, advertising, and accessibility cases. He also represented online and traditional media providers in matters before federal and state courts, as well as the FCC and FTC, regarding general regulatory compliance. He likewise provided counsel and strategic advice on a broad range of litigation, administrative, enforcement, and legislative matters related to communications, the media, and all aspects of consumer privacy. His practice included Freedom of Information Act matters before the courts and federal agencies as well. Mr. London has considerable experience litigating and advising on “Title III” issues under the Wiretap Act, Stored Communications Act, Computer Fraud and Abuse Act, and Video Privacy Protection Act, as well as with privacy protections under the Cable Communications Policy Act.
Mr. London's move to FIRE represents a major addition to the group's in-house litigation arsenal.
Here is FIRE's press release:
College and university faculty members of all political stripes are facing greater threats to their expressive rights and academic freedom than at any other time in recent memory. That’s why, next month, the Foundation for Individual Rights in Education will launch a new Faculty Legal Defense Fund that will provide free legal representation to public college faculty members who need it. The fund will also feature a 24/7 telephone hotline for faculty in need of immediate assistance.
Made possible through generous support from the Stanton Foundation, FIRE is pleased to announce attorney Ronald G. London will lead the fund’s efforts. London is the former president and now national chair of the First Amendment Lawyers Association.
“I’m thrilled and honored to be selected to help lead this expansion of FIRE’s ‘first responder’ capabilities in safeguarding faculty members’ academic freedom and ability to express diverse views,” said London.
The Faculty Legal Defense Fund will augment FIRE’s ability to effectively assist faculty facing threats of censorship and punishment for speech and research, ensuring that faculty who need legal help get it quickly.
“Adding the Faculty Legal Defense Fund to FIRE’s arsenal will allow us to help more faculty — faster,” said FIRE President and CEO Greg Lukianoff. “We will continue to litigate cases in-house to establish rights-protective precedents, continue to fiercely advocate in the public square for those whose rights are denied on campus, and now, with the creation of this legal fund, we will multiply exponentially our ability to assist those faculty members who need it in a way and at a pace we never could before.”
More details about FIRE’s Faculty Legal Defense Fund and hotline will be forthcoming.
- Video: Corn-Revere and London, counsel for Apple in Pear v. United States (June 16, 2016) before a moot court of nine justices with Floyd Abrams presiding as Chief Justice (Freedom Forum).
College educators form alliance to defend free expression
This from AP writer Hillel Italie:
Around 200 scholars from across the country have formed the Academic Freedom
Alliance, which has a mission to help college educators "speak, instruct, and publish without fear of sanction, bullying, punishment, or persecution."
Launched March 8, the nonprofit organization arose out of discussions among some Princeton University faculty members over how to counter what they see as growing intolerance of differing viewpoints. They plan to serve as advocates for those they believe have been unjustly attacked, and to provide money for legal support if needed. Members will pay an annual fee of $50 if they are tenured professors; $35 for others; the alliance also is seeking donations.
"We were looking for a way to foster a national conversation about these kinds of issues," says Princeton's Keith E. Whittington, who chairs the alliance's academic committee.
Members range politically from Harvard University's Cornel West, a Bernie Sanders supporter, to retired Vanderbilt University professor Carol Swain, a backer of former President Donald Trump. Others in the alliance include the constitutional scholar Sanford Levinson, based at the University of Texas School of Law; the award-winning novelist Charles Johnson, a professor emeritus at the University of Washington; and Nadine Strossen, the former president of the ACLU and a professor emerita at New York Law School.
Center for Protest Law and Litigation defends Line 3 protestors
that police and government officials at the site of the Line 3 pipeline expansion in Aitkin County, MN and the City of Palisade immediately cease efforts to obstruct and stop an event scheduled for Saturday, February 6 on local public parkland consisting of peaceful free speech, educational and religious activities intended to provide information to the public about just transitions for a sustainable future and the extreme dangers the pipeline poses to the community.
Local officials have illegally and unconstitutionally sought to “deny” access to the public park and have directly threatened and retaliated against the organizers of the event, who include Winona LaDuke, an Anishinaabekwe (Ojibwe) enrolled member of the Mississippi Band Anishinaabe; Tania Aubid, a resident of Aitkin County, and a member of the Mille Lacs Band of Ojibwe; Gaylene Spolarich, a resident of Palisade, and a member of Turtle Mountain Band as well as former City Clerk for Palisade; and Shania Matteson, a non-Indigenous resident of Palisade.
The letter (linked here) to the Aitkin County’s Sheriff and Land Commissioner, and Palisade’s Mayor and City Clerk, from CPLL’s director, constitutional rights lawyer Mara Verheyden-Hilliard, states: “Basic First Amendment rights are being deprived at the whim and direction of entities and officials, armed with the power of the state, serving essentially as private security of a private corporation [Enbridge] whose profit interests lie in suppressing and demonizing opposition to their activities – including suppressing educational events that can impact the public’s understanding of their dangerous pipeline.”
Winona LaDuke stated: "More and more people are waking up to the centuries of violence and repression that native people have endured at the hands of corporations and the state. As more people stand with us for the water and our treaty rights, we see law enforcement working hand-in-hand with corporations to suppress that dissent and malign our movements."
- Melissa Turtinen, "Jane Fonda in MN to join in protests of Line 3 pipeline," Bring Me the News (March 15)
- US Protest Law Tracker ("The US Protest Law Tracker, part of ICNL’s US Program, follows initiatives at the state and federal level since November 2016 that restrict the right to peaceful assembly." As of this post, 45 states have considered 216 bills. 26 have been enacted and 76 are pending.)
Upcoming virtual event — FAW Public Forum: 'Open Courts & Racial Justice'
For millions of Americans, the brutal death of George Floyd at the hands of Minneapolis police reinforced long-held suspicions about racial bias in the United States’ police departments. This month, the trial for the officer filmed with his knee on Floyd’s neck will begin, putting the spotlight again on the legal system’s handling of police killings of Black people. The press and public will be able to observe the trial — both in person and from their homes — and decide for themselves if the system they see is just and fair, thanks to the First Amendment’s promise of open courts.
The high-profile case has raised numerous First Amendment issues, including attempted gag orders, questions about public access to evidence in the case, and whether cameras would be allowed to expand public access, given public health considerations that restrict how many people can be in the courtroom.
DATE & TIME: Join First Amendment Watch and First Amendment Coalition for the next #FAWPublicForum conversation on March 24th at 2 p.m. ET about the importance of access to our courts, with a special focus on the George Floyd case.
Hear from Leita Walker, a First Amendment lawyer for a Minneapolis media coalition that successfully won greater access to the case, and First Amendment lawyers David Snyder and David L. Hudson Jr. First Amendment Watch staff writer Soraya Ferdman will moderate the discussion.
The virtual event will correspond with the release of our next Teachers Guide on the right to access court proceedings and records.
→ Register here.
Upcoming webinar event — Norton, Varat, and Volokh on fake news & First Amendment
Please join three of America’s leading First Amendment scholars, Helen Norton, Jonathan Varat and Eugene Volokh on Wednesday, March 31, 2021 from 3:30 - 5 p.m. (EDT), for an online panel discussion of a potential state statute banning fake news.
Pundits across the political spectrum agree in their denunciation of fake news. Banning it, however, raises serious constitutional and policy issues. Should the First Amendment protect:
• False statements from Russian bots disseminated to foment divisions and harm our democracy,
• Intentionally false speech fabricated for the sole purpose of generating higher online advertising revenue,
• Demonstrably false statements about public health such as “Masks don’t slow the spread of COVID,”
• False challenges to our electoral process such as “Georgia counted thousands of phony ballots”?
This online panel uses a model state statute banning fake news as a vehicle for exploring these difficult legal issues. Following their presentations, panelists will take questions from the online audience.
CLE: CLE of 1.5 credits in Ohio has been approved.
COST: Attendance is free, just register. And you're encouraged to read this introduction along with the model state statute and leave a comment on the website about your views on whether banning fake news is good policy and constitutionally permissible.
→ Register here.
New book: Sunstein on lies and free speech
- Cass Sunstein, "Liars: Falsehoods and Free Speech in an Age of Deception" (Oxford University Press, March 1)
A powerful analysis of why lies and falsehoods spread so rapidly now, and how we can reform our laws and policies regarding speech to alleviate the problem.
Lying has been with us from time immemorial. Yet today is different-and in many respects worse. All over the world, people are circulating damaging lies, and these falsehoods are amplified as never before through powerful social media platforms that reach billions. Liars are saying that COVID-19 is a hoax. They are claiming that vaccines cause autism. They are lying about public officials and about people who aspire to high office. They are lying about their friends and neighbors. They are trying to sell products on the basis of untruths. Unfriendly governments, including Russia, are circulating lies in order to destabilize other nations, including the United Kingdom and the United States. In the face of those problems, the renowned legal scholar Cass Sunstein probes the fundamental question of how we can deter lies while also protecting freedom of speech.
To be sure, we cannot eliminate lying, nor should we try to do so. Sunstein shows why free societies must generally allow falsehoods and lies, which cannot and should not be excised from democratic debate. A main reason is that we cannot trust governments to make unbiased judgments about what counts as "fake news." However, governments should have the power to regulate specific kinds of falsehoods: those that genuinely endanger health, safety, and the capacity of the public to govern itself. Sunstein also suggests that private institutions, such as Facebook and Twitter, have a great deal of room to stop the spread of falsehoods, and they should be exercising their authority far more than they are now doing. As Sunstein contends, we are allowing far too many lies, including those that both threaten public health and undermine the foundations of democracy itself.
Forthcoming scholarly article: Post on compelled speech
- Robert Post, "NIFLA and the Construction of Compelled Speech Doctrine," Indiana Law Journal (2021)
First Amendment doctrine disfavoring compelled speech originated in 1943 in the classic case of West Virginia State Board of Education v. Barnette. There are good and convincing explanations for the Court’s decision in Barnette, but the Court’s recent expansion of the doctrine has culminated in National Institute of Family & Life Advocates [“NIFLA”] v. Becerra in the assertion that compelled speech is in most instances “content-based” regulation requiring heightened judicial scrutiny.
Using examples ranging from professional malpractice to compulsory tax returns, this article argues that the doctrinal rule of NIFLA is demonstrably incorrect. It suggests that the doctrinal category of “compelled speech” may itself be confused insofar as it imagines that all legal obligations to communicate are constitutionally disfavored. Courts should scrutinize instances of compelled speech as necessary to protect threatened constitutional values, but the presence of these values will vary depending upon social context.
Courts must therefore learn to read the geography of our social landscape, and the article offers some hints for how this might be done. Applying these insights to NIFLA, the article argues that the outcome of the case actually depended upon preconscious and undefended suppositions about social context. If constitutional decisions like NIFLA are to be made persuasive, such suppositions must be made explicit and justified.
- Claudia Haupt, "Regulating Speech Online: Free Speech Values in Constitutional Frames," Washington University Law Review (Feb. 28)
- Scott Bauries, "Public Employees Who Testify," Employee Rights & Employment Policy Journal (2020)
- Henry Rose, "Why Do the Poor Not Have a Constitutional Right to File Civil Claims in Courts Under Their First Amendment Right to Petition the Government for Redress of Grievances?," SSRN (Jan. 18)
- Eugene Volokh, "No Right of Publicity Claim for Publishing Court Opinion with Plaintiff's Name," The Volokh Conspiracy (March 15)
- Eugene Volokh, "Some References Are Just Sophomoric Attempts at Humor,” The Volokh Conspiracy (March 15)
- Kaylyn Kluck, "Kingsport homeowner defends profanity-laced flags, First Amendment rights," News Channel 11 (March 15)
- Sorata Ferdman, "Kentucky Senate Passes Bill That Would Make it A Crime to 'Taunt' a Police Officer," First Amendment Watch (March 12)
- "Court Tosses Trump Campaign’s Defamation Suit Against the New York Times," First Amendment Watch (March 10)
- Adam Liptak, "Supreme Court Backs Georgia College Student’s Free Speech Suit," The New York Times (March 8)
- "House Passes Direct Assault on Free Speech," Institute for Free Speech (March 3)
- "Nine Former FEC Commissioners Warn of “Ruinous Effect” of H.R. 1 and S. 1," Institute For Free Speech (Feb. 9)
2020-2021 SCOTUS term: Free expression & related cases
- Mckesson v. Doe (per curium, 7-1 with Thomas, J., dissenting) (judgment vacated and remanded to 5th Cir.)
- Facebook, Inc. v. Duguid (OA: Dec. 8, 2020) (Telephone Consumer Protection Act robocall case)
- Fulton v. City of Philadelphia (OA: Nov. 4, 2020) (religious expression: free exercise & free speech claims)
- Carney v. Adams (OA: Oct. 5, 2020) (standing/judicial elections)
- Mahanoy Area School District v. B.L.
- Thomas More Law Center v. Becerra
- Americans for Prosperity Foundation v. Becerra
- Hamilton v. Speight
- Thompson v. Marietta Education Association
- Hamilton v. Speight
- City of Austin, Texas v. Reagan National Advertising of Texas Inc.
- Houston Community College System v. Wilson
- Thompson v. DeWine
- Corn et al v. Mississippi Dept. of Public Safety (5th Cir. opinion)
- Trump v. Knight First Amendment Institute
- Stockman v. United States
- Institute for Free Speech v. Becerra
- Arlene’s Flowers Inc. v. Washington
- Jack Daniel’s Properties Inc. v. VIP Products LLC
- Hurchalla v. Lake Point Phase
- Bruni v. City of Pittsburgh
- Hunt v. Board of Regents of the University of New Mexico
- Lieu v. Federal Election Commission
- City of Sacramento, California v. Mann
- Evans v. Sandy City, Utah
- Reisman v. Associated Faculties of the University of Maine
- Austin v. Illinois
- Living Essentials, LLC v. Washington
- Rentberry, Inc. v. City of Seattle (cert. denied)
- Uzuegbunam & Bradford v. Preczewski, et al. (nominal damages and mootness in campus speech context) (cert. granted: 8-1 held Art. III claim not moot)
- National Association of Broadcasters v. Prometheus Radio Project (Re: Section 202(h) of the Telecommunications Act of 1996) (cert. granted & case argued)
- Federal Communications Commission v. Prometheus Radio Project (Re: FCC cross-ownership restrictions) (cert. granted & case argued)
- Retzlaff v. Van Dyke (state anti-SLAPP laws in federal diversity cases) (cert. denied)
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