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First Amendment News 295: Ted Olson & David Cole petition SCOTUS for access to surveillance opinions

foreign intelligence surveillance court

Foreign Intelligence Surveillance Court (Mark Van Scyoc /

"What's unusual is that it's secret throughout the process." — David Cole (2003)

"[They] can't create a constitutional court and then insulate that court from any public access . . . creating blanket immunity from public review of its opinions." — Theodore Olson (2021)

“Informed debate about government surveillance is impossible if the public doesn’t have access to the court opinions that evaluate the government’s surveillance activities.” — Jameel Jaffer (2021)

In 1979, the Supreme Court — per Justice Potter Stewart — dismissed the claim in a case before it that pretrial closure violated any public and press First Amendment right of access to court proceedings. (The case was Gannett v. DePasquale.) The following year, Laurence Tribe, who had clerked for Stewart (1967-68 term), persuaded the Court that the right of the public and press to attend criminal trials is guaranteed under the First and Fourteenth Amendments. (The case was Richmond Newspapers v. Virginia.) Chief Justice Warren Burger, who authored the plurality opinion, raised the possibility of an "overriding interest" that could defeat a First Amendment claim. Justice Stewart, who joined in the holding, warned that certain circumstances could justify a limitation on the right to access.

Could certain circumstances become all circumstances, depending on the nature of the judicial proceeding?

Theodore B. Olson (Gibson Dunn)

The answer is yes, since all courts are not created equal. Thus, there is no First Amendment right to public and press access to the proceedings of the Foreign Intelligence Surveillance Court. Even access to its written opinions is barred. It is precisely that denial that is now being challenged in the Supreme Court in a petition filed on behalf of the ACLU, the Knight First Amendment Institute at Columbia University, and the Media Freedom and Information Access Clinic and the Floyd Abrams Institute for Freedom of Expression, both at Yale Law School.

Theodore Olson and David Cole are the lead lawyers joined by 13 other First Amendment lawyers including Jameel Jaffer, Alex Abdo, Cecillia D. Wang, Arthur Spitzer and David A. Schulz.

The case

Issues raised

The questions presented are:

  1. "Whether the FISC, like other Article III courts, has jurisdiction to consider a motion asserting that the First Amendment provides a qualified public right of access to the court’s significant opinions, and whether the FISCR has jurisdiction to consider an appeal from the denial of such a motion" and
  2. "Whether the First Amendment provides a qualified right of public access to the FISC’s significant opinions."

'Qualified' First Amendment claim 

David Cole (ACLU)
David Cole (ACLU)

In their petition, the groups and their lawyers contest the surveillance court’s assertion that it “cannot even consider such a claim.” That assertion, they maintain, “cannot be squared with the unbroken tradition of public access to judicial opinions, or with the logic in upholding a qualified entitlement to legal opinions concerning the nation’s surveillance laws.” They also argue that:

Under the framework set out by this Court in Press–Enterprise II and related cases, a qualified First Amendment right of access applies to significant FISC opinions. First, there is a “history” of public access to judicial opinions, including to those that address the lawfulness of national security surveillance. Press–Enterprise II, 478 U.S. at 8–9. Second, recognizing a right of access here would play a “significant positive role,” including with respect to the functioning of the FISC itself. Id. The prior FISC decision denying a First Amendment right of access on the merits was in error. For reasons similar to those discussed here and below, . . . the FISCR had jurisdiction to review the FISC’s jurisdictional holding. While the earlier FISC opinion is not under review, Petitioner addresses its errors here because the FISC has definitively decided the First Amendment question and because that ruling is relevant to Petitioner’s claim on the merits. This Court has discretion to decide the jurisdictional and merits questions together. See Nixon v. Fitzgerald, 457 U.S. 731, 743 n.23 (1982); House v. Mayo, 324 U.S. 42, 44–45 (1945), overruled on other grounds, Hohn v. United States, 524 U.S. 236, 251 (1998).

Related news stories & press releases 

Cert. petition raises novel question: Is government speech both immune from, yet protected by, the First Amendment?

The issue raised in a cert. petition filed in Campbell v. Pennsylvania School Boards Association, et al. is a curious one: Is government speech both immune from, yet protected by, the First Amendment? More specifically, does the government have a "right" to "petition" the courts to retaliate against a citizen for engaging in activity that is protected by the First Amendment?

On the one hand, and as the Court declared in Hartman v. Moore (1996), "[o]fficial reprisal for protected speech offends the Constitution [because] it threatens to inhibit the exercise of a protected right." On the other hand, so the Respondent school boards maintain, they enjoy a First Amendment right to petition the courts to strike out against their critics.

Facts as presented by Petitioners

Jacob C. Cohn, counsel for Petitioners (Gordon Rees Scully Mansukhani)

Petitioners, vocal critics of public school teacher unions and the school districts in which they operate, were engaged in First Amendment-protected free speech and petitioning activities when they were sued by the Respondents, an association of public school boards governed by 10 elected public school officials—all state actors—in an objectively baseless lawsuit in state court specifically targeting Petitioners’ free speech and petitioning, with the admitted intention of chilling Petitioners’ exercise of their First Amendment rights.

In response, Petitioners filed a federal civil rights action seeking to enjoin the lawsuit and vindicate their First Amendment rights. Petitioners’ evidence was sufficient to establish the three generally accepted ele- ments of a First Amendment retaliation claim under 42 U.S.C. § 1983, i.e., (1) constitutionally protected speech and/or conduct, (2) retaliatory action sufficient to deter a person of ordinary firmness from exercising his constitutional rights, and (3) a “but-for” causal link between the constitutionally protected conduct and the retaliatory action. The state actor Respondents, however, claimed that they were entitled to “Noerr- Pennington” petitioning immunity for their baseless lawsuit. (cert. petition)

The District Court granted summary judgment and the Third Circuit affirmed. Though the Third Circuit

agreed that the government defendants in this case suppressed or punished Petitioners’ use of the Pennsylvania Right to Know Law by filing objectively baseless state tort claims for defamation, tortious interference with contractual relations, and abuse of process.  However, it applied the Noerr-Pennington doctrine— a judicially created defense securing First Amendment rights against certain business torts—to bar Petitioners’ Section 1983 action alleging government retaliation. Thus, the Third Circuit held that the First Amendment shielded government defendants from Petitioners’ retaliation claim.

Issues raised

The two questions presented in the case are:

  1. Whether state actors, acting under color of state law, are entitled to claim petitioning immunity from liability for a First Amendment retaliation claim brought under 42 U.S.C. § 1983?
  2. If such immunity exists, is a showing that a state actor’s civil lawsuit was (a) objectively baseless, and (b) filed for the purpose and with the intent of chilling First Amendment-protected speech and petitioning activities sufficient to overcome any petitioning immunity claimed by the state actor?

Lessons in constitutional law

In its amicus brief presented in support of the Petitioners, counsel for the Institute for Free Speech reminds the Court and parties of what it presents as basic tenets of American constitutional law:

  1. "A governmental unit 'created by a state for the better ordering of government, has no privileges or immunities under the Federal Constitution which it may invoke in opposition to the will of its creator.' Williams v. Mayor & City Council of Balt., 289 U.S. 36, 40 (1933)."
  2. "It is 'inconceivable that governments should assert First Amendment rights antagonistic to the interests of the larger community,' and doing so in this context especially 'would be standing the world on its head.' Yudof, supra, at 45. See CBS, Inc. v. Democratic Nat’l Comm., 412 U.S. 94, 139 (1973) (Stewart, J., concurring) ('The First Amendment protects the press from governmental interference; it confers no analogous protection on the Government.')"
  3. "Government speech is an aspect or manifestation of sovereignty. Accordingly, once speech is categorized as that of the government, the First Amendment does not apply."
  4. "No doubt, government officials retain their personal First Amendment rights to speak as citizens, Pickering v. Bd. of Educ., 391 U.S. 563, 574 (1968), but 'when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes.' Garcetti v. Ceballos, 547 U.S. 410, 421 (2006)."
  5. "These principles apply with particular force in this case, where the government is seeking First Amendment immunity in the form of a 'right to petition' so that it may retaliate against a citizen’s exercise of First Amendment rights."
  6. [Conclusion] "To suggest that government speech is both immune from, yet protected by, the First Amendment is a constitutional non sequitur. Government agencies certainly are empowered to file suit or petition other government bodies in performance of their duties, but they enjoy no 'right' to avoid liability when they abuse the courts to silence their critics."

Democrats press Justice Barrett to recuse herself in First Amendment case

The case is Americans for Prosperity Foundation v. Rodriguez. An excerpt from the letter signed by Sheldon Whitehouse (D-R.I.) and Richard Blumenthal (D-Conn.), both members of the Senate Judiciary Committee, along with Rep. Hank Johnson (D-Ga.) of the House Judiciary Committee is set out below:

During your recent confirmation proceedings, you were asked in written questions whether you would recuse yourself from Americans for Prosperity Foundation v. Rodriquez (Becerra), No. 19-251, a case then pending on the Court’s certiorari docket. You declined to do so, answering that “[a]s a sitting judge and as a judicial nominee, it would not be appropriate for me to offer an opinion on abstract legal issues or hypotheticals,” and that “[s]uch questions can only be answered through the judicial process.” Because the Supreme Court has since granted the case, these questions are no longer abstract or hypothetical, so we renew the request.

Justice Amy Coney Barrett

AFPF concerns the constitutionality of California’s requirement that certain nonprofits confidentially provide their IRS Form 990 Schedule B, which identifies their major donors, to the State’s Attorney General. Americans for Prosperity Foundation (AFPF)—the 501(c)(3) arm of Charles Koch’s right-wing political advocacy group Americans for Prosperity (AFP)—has challenged the disclosure requirement. It now seeks from the Court a broad constitutional ruling allowing it to keep its donors’ identities secret.

“Just minutes after” your nomination by former President Trump last September, when AFPF was pending at the Court, AFP announced that it was mounting a “Full Scale Campaign to Confirm Judge Amy Coney Barrett.” AFP described its campaign as “a significant national ad campaign focusing on eleven key states to scale its activists’ efforts to urge their senators to confirm Judge Amy Coney Barrett to the Supreme Court.” Its “national campaign . . . included a robust mix of targeted direct-mail, layered digital ads, and other tactics.” Though AFP refused to disclose exactly how much it planned to spend on this campaign blitz, it confirmed that “it would be in the seven figures.”

On January 8, 2021, just over two months after your confirmation, the Supreme Court granted AFPF’s cert petition.

Statute, constitutional case law, and common sense all would seem to require your recusal from AFPF after AFP’s “full scale campaign to confirm” your nomination. 28 U.S.C. § 455(a) provides: “Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned,” and 28 U.S.C. § 453, the judicial oath of office, requires all judges to swear that they will administer justice “without respect to persons.” Critically, the standard under the federal recusal statute is an objective one. The question is not whether you believe you can be impartial in ruling on a case brought by the corporate sibling of AFP, the group that spent millions of dollars in support of your nomination to the Court. It is whether an “objective, informed” member of the public “could reasonably question” your impartiality in this case.

MyPillow hires veteran First Amendment attorneys 

According to a report in the Daily Beast filed by Asawin Suebsaeng and Adam Rawnsley, Mike Lindell

Nathan Lewin (Wikicommons)

has assembled a legal team front-loaded with First Amendment heavyweights who aren’t so much looking to defend the merits of their client’s bizarre claims as his constitutional right to say them free from the consequence of devastating financial ruin. . . .

According to court documents filed late last week, Lindell’s company, MyPillow, has hired veteran First Amendment attorney Nathan Lewin to represent the company as its Trump-aligned founder faces a billion-dollar defamation lawsuit from Dominion Voting Systems over a series of baseless allegations about the company and the 2020 U.S. presidential election.

Lewin joins his friend and fellow legal heavyweight, celebrity lawyer and Trump impeachment-defense veteran Alan Dershowitz, who, while not an attorney of record in the case, recently announced that he is informally advising Lindell and his legal team on the defense. . . .

Prof. Alan Dershowitz (Harvard Law)

“I’ve been on conference calls repeatedly with [Lindell’s] legal team, sometimes Lindell is on, sometimes he’s not,” Dershowitz said in a phone interview last week. “My role is to come up with ideas as they pertain to the First Amendment. I give them cases, and I suggest First Amendment theories—my role is limited to advising on the First Amendment issues at hand.”


YouTube: Lindell floats 'free speech' platform idea 

Upcoming Conference: 'Reimagine the Internet'

This from the Knight First Amendment Institute:

Knight First Amendment Institute

Reimagine the Internet is a virtual conference co-hosted by the Knight First Amendment Institute at Columbia University and the soon-to-be-launched Institute for Digital Public Infrastructure at the University of Massachusetts, Amherst. In six sessions over five days, there will be more than a dozen speakers whose work hints at what the internet could become over the next decade.

As the internet has become an inescapable part of our commercial, social, and civic lives, the flaws and harms of the contemporary internet have become increasingly apparent. Despite rhetoric of decentralization, monopolies and points of control have arisen online, and powerful corporations have largely unregulated power over vast swaths of speech and commerce. The spaces these corporations have built may be having significant negative effects on our democracies, leading towards political polarization, the spread of mis/disinformation, and the growth of politically influential conspiracy theories.

While there is robust debate about what social ills can be traced to decisions made by commercial actors, the discussion over what’s to be done is often circumscribed. We debate how platforms like Facebook and YouTube should be regulated to be less harmful, but the conversation rarely extends to questions about how we could design new internet spaces that could lead towards healthier discussions, communities, and societies. “Reimagine the Internet” is an event designed to spark some of these conversations and to feature some of the most promising efforts in this direction.

Dates: May 10-14

Register here.

Soon to be released book by Sen. Josh Hawley

The reign of Big Tech is here, and Americans’ First Amendment rights hang by a keystroke.

Amassing unimaginable amounts of personal data, giants like Google, Facebook, Amazon, and Apple—once symbols of American ingenuity and freedom—have become a techno-oligarchy with overwhelming economic and political power.

Decades of unchecked data collection have given Big Tech more targeted control over Americans’ daily lives than any company or government in the world. In The Tyranny of Big Tech, Senator Josh Hawley of Missouri argues that these mega-corporations—controlled by the robber barons of the modern era—are the gravest threat to American liberty in decades.

To reverse course, Hawley argues, we must correct progressives’ mistakes of the past. That means recovering the link between liberty and democratic participation, building an economy that makes the working class strong, independent, and beholden to no one, and curbing the influence of corporate and political elites.

Big Tech and its allies do not deal gently with those who cross them, and Senator Hawley proudly bears his own battle scars. But hubris is dangerous. The time is ripe to overcome the tyranny of Big Tech by reshaping the business and legal landscape of the digital world.

Justice Barrett inks book deal with conservative imprint

Forthcoming book on campus speech and political correctness 

In this bracing book, Michael S. Roth stakes out a pragmatist path through the thicket of issues facing colleges today to carry out the mission of higher education. With great empathy, candor, subtlety, and insight, Roth offers a sane approach to the noisy debates surrounding affirmative action, political correctness, and free speech, urging us to envision college as a space in which students are empowered to engage with criticism and with a variety of ideas.

Countering the increasing cynical dismissal—from both liberals and conservatives—of the traditional core values of higher education, this book champions the merits of different diversities, including intellectual diversity, with a timely call for universities to embrace boldness, rigor, and practical idealism.


New scholarly article on true threats and social media

The doctrine that carves out “true threats” from First Amendment protection has been unclear, in its scope and operation, since the exception was first recognized more than half a century ago. This category of unprotected speech was recognized by the Supreme Court in 1961, in a decision that identified “true threats” as distinct from other, protected, potentially threatening speech, but did not articulate a standard which lower courts could apply to distinguish the two. In the fifty years since, the Court has addressed the constitutional bounds of the true threat doctrine only once, clarifying that true threats require some showing of intent.

New & forthcoming scholarly articles 

Two new YouTube videos

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.)
  • Facebook, Inc. v. Duguid (OA: Dec. 8, 2020) (Telephone Consumer Protection Act robocall case — decided on statutory grounds)

Cases argued

Cert. granted

Pending petitions

Cert. denied

First Amendment-related 

Last scheduled FAN

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