Table of Contents

Permissible political influence or impermissible bribery? Cert. petition in Roberson v. U.S. raises that question — FAN 322

"The First Amendment . . . squarely protects the right to engage in — and pay for — advocacy like the anti-EPA campaign here, not only to 'donat[e]' to candidates or other speakers." — Yaakov M. Roth
Yaakov M. Roth is counsel of record in Roberson v. United States.

Yaakov M. Roth is counsel of record in Roberson v. United States. (Jones Day)

"Roberson looks to be just the kind of case that could interest the Justices, involving the line between political influence permissible under the First Amendment and impermissible bribery. Bribery laws stand likely to be further weakened on First Amendment grounds if the Court agrees to hear this case."

— Prof. Richard Hasen (Nov. 28)

The case is Roberson v. United States, a case that may well find its way to the "cert. granted" side of the docket. The issues raised in the case are:

  1. Whether, in a bribery prosecution based on issue-advocacy payments that would otherwise enjoy First Amendment protection, the government must prove that the payments were explicitly linked to official action.
  2. Whether a jury must be instructed that merely “expressing support” for a policy cannot support a conviction under the federal bribery laws.

The statement of facts, as set out in the U.S. Court of Appeals for the Eleventh Circuit opinion, are as follows:

The case involves the Defendants-Appellants’ concealed payments of hundreds of thousands of dollars to an Alabama Representative through his charitable foundation in exchange for “advocacy” and “community outreach” intended to undermine the Environmental Protection Agency’s (“EPA”) efforts to clean up a Superfund site. The Defendants-Appellants were convicted of bribery under 18 U.S.C. § 666(a)(2), among other charges, following a month-long trial with numerous witnesses, including the Representative himself, and hundreds of exhibits. Defendants-Appellants claim, inter alia, that the convictions should be overturned because no reasonable jury could find that the Representative committed an “official act,” an element required of a different flavor of federal bribery–18 U.S.C. § 201. The court concludes that the district court was correct not to equate these two federal statutes and that the Appellants’ remaining arguments regarding the jury instructions and the district court’s decision not to sever the Appellants’ trial are unavailing. The judgments of conviction are affirmed.

The First Amendment issues raised in the cert. petition are:


  1. The Panel Nullified McDonnell’s Holding that Mere Support Is Not “Official Action”
  2. The Panel Further Eviscerated McDonnell by Exempting Federal Programs Bribery from Any “Official Action” Requirement.

In their cert. petition, counsel for the petitioner argues that:

Time and again, this Court has intervened when prosecutors have tried to use federal criminal law to impose their own views of good governance on state and local officials. See, e.g., Kelly v. United States, 140 S. Ct. 1565, 1568 (2020) (rejecting attempt to prosecute realignment of toll lanes as criminal fraud); United States v. McDonnell, 136 S. Ct. at 2355 (rejecting attempt to prosecute governor’s unofficial promotion of constituent’s business as bribery).

This Court must act once again to prevent the criminalization of political advocacy, and to stop the government from diminishing the Court’s precedents in this arena through hyper-technical distinctions and arbitrary caveats. The decision below approves those prosecutorial maneuvers, and in doing so opens the floodgates of partisan political prosecutions, creates or exacerbates conflicts in lower court authority, and condemns an innocent man to prison.

More specifically, the Court should grant review to address two sets of related issues—standards for the pro and quo aspects of federal bribery, respectively.

Counsel of record: Yaakov M. Roth (with Anthony Dick). Among other things, Mr. Roth successfully argued Kelly v. United States (2020), wherein a unanimous court threw out the “Bridgegate” convictions. At the appellate level, Mr. Yaakov successfully defended the rights of white-collar criminal defendants by limiting unfair "withdrawal liability" "assessments against employers, pressing a First Amendment challenge to an Ohio law prohibiting 'false' campaign statements."

Attorney suspended for criticizing Ohio Supreme Court — divided state high court affirms

This from David L. Hudson over at The Free Speech Center:

Prof. David Hudson

The Ohio Supreme Court disciplined an attorney who criticized the court in a memorandum he filed in a property-tax case, reasoning that he engaged in undignified and discourteous conduct degrading to the court and violated two other rules of professional conduct. The court rejected the attorney’s arguments that his criticism of the judiciary was protected by the First Amendment.

John Alex Morton, an attorney from Richmond Heights, represented an individual who was attempting to lower the tax valuation of a piece of property in Cuyahoga County. Morton’s client purchased the property for $5,000 in 2011, but in 2015, a county fiscal officer valued the property at $107,900. Morton filed a complaint with the Cuyahoga County Board of Revision seeking a valuation back down to $5,000. The Board of Revision, however, refused and retained the fiscal officer’s valuation of $107,900 . . . In a per curiam decision, the court majority ruled 5-2 against Morton and imposed a six-month suspension in its Nov. 23, 2021, decision.

Cleveland Metro. Bar Assn. v. Morton (OH S. Ct., 2021)

Georgia election workers sue far-right website

This from First Amendment Watch:

A Georgia mother and daughter who processed ballots in Atlanta for the 2020 presidential election are suing The Gateway Pundit, a right-wing conspiracy theory website, for falsely claiming they manipulated ballots.

According to the complaint filed in the circuit court for St. Louis City, Missouri, by Ruby Freeman and Wandrea “Shay” Moss, the website published dozens of false stories about them, calling them “crooked Democrats” and claiming that they “pulled out suitcases full of ballots and began counting those ballots without election monitors in the room.”

The false claims were amplified and repeated by former president Donald Trump and some of his supporters, including Rudy Guiliani, until as recently as last month. Investigations by the Georgia secretary of state’s office as early as last January found that Moss and Freeman had done nothing wrong and had legally counted the ballots.

“The lies about Ms. Freeman and Ms. Moss have not only devastated their personal and professional reputations but instigated a deluge of intimidation, harassment, and threats that has forced them to change their phone numbers, delete their online accounts, and fear for their physical safety,” reads the complaint. Freeman was advised by the FBI to leave her home, and says she didn’t return for two months.

The St. Louis, Missouri-based Gateway Pundit is published by twin brothers, James and Joseph Hoft, and is known for spreading falsehoods about such topics as election results, the coronavirus pandemic, and vaccinations. In February, Twitter shutdown the Gateway Pundit account for violating its rules about posting misleading information on election outcomes.

Freeman v. Hoft complaint


Philip D. Harvey (1938-2021) — Entrepreneur, philanthropist, libertarian, and defender of free speech

"Phil had the wherewithal, financially, the backbone, and the principles to fight [government censorship] . . . and he won." — Jonathan Rauch

This from his Wikipedia entry:

Phil Harvey
Phil Harvey (Wikipedia)

Phil Harvey was an American entrepreneur, philanthropist and libertarian who set up large-scale programs that delivered subsidized contraceptives in poor countries. Harvey was the founder and former president of DKT International, the Washington, D.C.-based charity that implements family planning and HIV/AIDS prevention programs in 57 countries across Africa, Asia and Latin America. He was the chief sponsor of the DKT Liberty Project which raised awareness about freedom of speech issues in the U.S. Harvey was also the president of Adam & Eve, the North Carolina–based company that sells sex toys, adult films and condoms. Consequently, he has been called "one of the most influential figures in the American sex industry today".

Harvey used profits from Adam & Eve to supplement support from international donors to protect millions of poor couples from unwanted pregnancies and HIV infections. In 2019, DKT International provided contraceptive protection to 49 million couples.

Free speech champion

"He is one of the greatest contributors to freedom of speech, not only for sexual expression but also for any controversial, unpopular speech. [We thus] owe an unfathomable debt of gratitude to Phil Harvey." — Nadine Strossen 

This from David Horowitz, executive director of the Media Coalition:

Phil created DKT Liberty Project to fight for free speech and individual liberty and served on the boards of National Coalition Against Censorship and Media Coalition and was a generous donor to many other First Amendment Groups.

Phil’s initial First Amendment victory was a successful challenge against a New York law that barred advertisements for condoms. The Supreme Court eventually affirmed the ruling striking down the law. His second major First Amendment victory was in 1986 when he began an eight-year battle to force the Justice Department to end the practice of using multi-jurisdictional prosecutions under the Racketeering-Influence and Corrupt Organizations statute (RICO) to drive producers of sexual content out of business. The government was not after obscene material; in Phil’s case, it conceded that it was targeting mere nudity. In the 1980s, the Meese Justice Department initiated a program called “Project Postporn” to stop the distribution of any sexual material in the US. The National Obscenity Enforcement Unit developed a two-prong strategy. First, bring prosecutions in multiple jurisdictions to drain a company’s finances. Then, threatened them with decades in prison and the forfeiture of business and personal assets using RICO statutes. The government used this tactic to intimidate defendants into “voluntarily” going out of business, or bankrupt them. At least a dozen companies closed rather than risk losing and suffering these consequences.

In 1986, Phil and PHE, Inc. began to fight back against the tactic. PHE, Inc. was charged by federal prosecutors with the distribution of obscenity in Alamance County, North Carolina. The feds picked Alamance because it is considered more conservative than Orange County, where the company is located. After a trial, PHE, Inc. was quickly acquitted, which did not sit well with the local U.S. Attorney who sent a memo to his staff saying they must find other venues to bring obscenity charges against the company. For two years, the U.S. Attorneys in North Carolina and Utah threatened to bring indictments against Phil, his workers, and his company. During this time, they offered him a plea deal if he was willing to stop selling any sexual material and pay a large fine, but there would be no prison sentence for him or his employees.

Phil wasn’t just a champion of free speech, he was also a major supporter of criminal justice reform and contributed heavily to drug legalization efforts.


Phil Harvey authored five books including "The Government vs. Erotica: The Siege of Adam & Eve" (2001). The book was nominated by the American Library Association’s Freedom Roundtable as the year’s leading work on intellectual freedom.

Cato Institute tribute to Philip Harvey (video here)

New biography of John Milton

An innovative and elegant new biography of John Milton from an acclaimed Oxford professor

John Milton was once essential reading for visionaries and revolutionaries, from William Blake to Ben Franklin. Now, however, he has become a literary institution—intimidating rather than inspiring.

In Making Darkness Light, Oxford professor Joe Moshenska rediscovers a poet whose rich contradictions confound his monumental image. Immersing ourselves in the rhythms and textures of Milton’s world, we move from the music of his childhood home to his encounter with Galileo in Florence into his idiosyncratic belief system and his strange, electrifying imagination.

Making Darkness Light will change the way we think about Milton, the place of his writings in his life, and his life in history. It is also a book about Milton’s place in our times: about our relationship with the Western canon, about why and how we read, and about what happens when we let someone else’s ideas inflect our own.

Forthcoming book on protests in art

Resist tells the story of art used as a form of rebellion, political protest and resistance.

This fully illustrated book brings together stories from throughout history to the present day to show the impact and importance of artistic dissent and opposition.

The artists featured differ in nationality, age, gender, race and circumstance but all use their work and voice to oppose abuse of power, social injustice and inequality.

With insightful text from art theorist Anny Shaw alongside stunning full page reproductions of the artworks and beautiful archive photography, this book is as visually attractive as it is thought-provoking, and also contains interviews with artists themselves on the impact of their work and their motivations for agitating against the status quo.

Arranged thematically, chapters cover

  • Censorship
  • Racial justice
  • Borders
  • War and the Arms Trade
  • Climate Crisis
  • LGBTQ Rights
  • Feminism

Powerful, moving work by artists such as Picasso, Barbara Kruger, Guerrilla Girls, Dread Scott and Ai Weiwei demand attention, call for change and give us hope in the possibility to create a better world.

Forthcoming book takes aim at 'progressive puritans'

Commentary editor Noah Rothman takes aim at the “woke left,” comparing them to stern, joyless Puritans who seek to make every daily choice a matter of life or death and break society down into the saintly or sinful.

In Noah Rothman’s view, the left used to be the party of the hippies and the free spirits. Now it’s home to woke scolds and humorless ideologues. From entertainment to food to comedy to family life, there’s no area of society the new leftists don’t want to control, he argues.

These new joyless progressives only dislike witch hunts when they’re not the ones running them. Like their puritanical forebears, new leftists do not abide forms of pleasure that distract from the great work of our time—righting the wrongs of America’s white patriarchal heritage. As Rothman sees it, Progressive Puritans are committed to waging a war on decadence, frivolity, and pleasure for its own sake. In pursuit of a better world, these people are making fools of themselves and impoverishing their compatriots.

In this hard-hitting critique, Rothman shows no mercy as he uncovers the historical roots of the left’s war on fun and counsels us to rediscover the freedom and joy at the heart of the American experiment.

Forthcoming book on obscene gestures 

Draft article: Volokh on the law of pseudonymous litigation — feedback invited

Prof. Eugene Volokh

I'm putting up some excerpts from my new draft article, The Law of Pseudonymous Litigation, hoping to get some feedback. This one is on how courts deal with claims that pseudonymity is needed to prevent harm to reputation or (relatedly) risk of economic retaliation. (The preceding portion of the article deals with the separate, though sometimes connected, argument that pseudonymity is necessary to protect information that is often seen as highly private, such as sexual orientation, transgender status, sexual behavior, mental illness, physical illness, and the like. Earlier portions dealt with, among other things, the costs of pseudonymity to the public, to adversaries, and to the judicial process.)

[* * *]

When we get past privacy and move on to reputational harm—and the economic and professional harm that can stem from reputational harm—the dominant answer is no pseudonymity, except in one important class of cases. I'll begin by laying out a few categories of situations where the risk of reputational harm is especially serious, and then summarize the state of court decisions on the subject.

See The Volokh Conspiracy for the continuation of the summary.

Forthcoming scholarly article: Ku on abortion and the law of free speech

The most important lessons are taught by example. Children learn the fundamental values that guide them throughout their lives from the examples set by their parents, especially their mothers. Even before they understand a language, they learn by observing and imitating the actions of their parents. For almost fifty years Roe v Wade guaranteed pregnant women the freedom to determine whether to carry their pregnancy to term. The right to obtain a safe abortion prior to viability is the most significant and controversial aspect of this freedom. The Supreme Court is now poised to overturn what it previously described as the central holding of Roe and allow state governments to restrict abortions prior to viability. If this occurs, it will not be because of an erosion of precedential authority. Instead, it will result from decades of concerted efforts to pack the Supreme Court with Justices who reject the premise that the substantive due process guaranteed by the Fourteenth Amendment limits the power of the states.

Prof. Raymond Ku (Case Western Reserve University)

Whether the Fourteenth Amendment independently restricts the power of states to regulate abortion, however, is not the focus of this essay. Instead, this essay argues that parallel developments in First Amendment law not only reinforce the traditional justification for safeguarding a woman’s freedom to determine whether to continue the course of a pregnancy, but provides an independent justification for subjecting abortion restrictions to heightened judicial scrutiny. Over the past fifty years, Justices that would restrict the Fourteenth Amendment’s role in guaranteeing individual liberty have successfully argued for a greater role for the First Amendment. Government regulation of conduct, especially commercial conduct, previously not recognized as protected speech have increasingly been subject to heightened judicial scrutiny and, in some cases, categorical protection.

This essay examines two recent cases, Masterpiece Cakeshop v. Colorado Civil Rights Comm. and Sorrell v. IMS Health, Inc., in which the Justices were required to consider whether the First Amendment and its protection of speech applied to conduct that would not traditionally have been considered speech. These cases highlight both the substantive and strategic value of (re)considering the myriad ways in which conduct is expressive or otherwise integral to expression and the nature of judicial review. When applied to abortion, this line of reasoning illuminates the expressive values at stake with pregnancy and childbirth; why abortion restrictions must be carefully scrutinized to ensure that they do in fact promote a legitimate interest in protecting the welfare of mother and child; and to prevent governing majorities from using childbirth to endorse and celebrate moral beliefs that are not shared by the pregnant woman and may be antithetical to her interests and the interests of a child.

Forthcoming scholarly article: Norton on government speech doctrine 

This Essay sketches a framework for mapping and navigating the constitutional implications of the government’s speech—and then illustrates this framework’s application to some contemporary constitutional disputes. My hope is that this framework will help us sort through the constitutional puzzles triggered by the government’s expressive choices—puzzles that confront courts and policymakers with increasing frequency.

Prof. Helen Norton (Casey A. Cass / Univ. of Colorado)

What I call “first-stage government speech questions” require us to determine when the government is speaking itself and when it is instead (or also) regulating others’ speech. This determination matters because the rules that apply to the government as speaker are very different from those that apply to the government as regulator—and necessarily so, as the government must have the power to control its own speech in order to govern.

What I call “second-stage government speech questions” involve the constitutional questions sometimes raised when the government is simply speaking and not compelling or regulating others’ speech. Here we consider whether and when the government’s speech by itself violates a specific constitutional provision like the Establishment Clause, the Equal Protection Clause, or the Due Process Clause, among others.

The government’s power to express itself is important and valuable. But sometimes governmental parties argue (and sometimes courts accept those arguments) that designating contested speech as the government’s is essentially a constitutional get-out-of-jail-free card—even though constitutional limits on the government's speech remain. One this Essay’s primary objectives is to make clear that even if we determine that contested speech is the government’s, our constitutional inquiry is by no means complete. Consider, for instance, governmental requirements that nongovernmental parties affirm or spread the government’s message against their will, or the government’s viewpoint-based restriction of private parties’ criticism of the government’s message. Think too of the government's speech that coerces, endorses, or denigrates religious practice in violation of the Establishment Clause, the government's speech that encourages or enables private parties' racial discrimination in violation of the Equal Protection Clause, law enforcement officers' lies to those in custody about their legal rights in violation of the Due Process Clause, and the government's speech that violates the Free Speech Clause by threatening its targets for engaging in protected expression.

To be sure, the universe of situations in which the government’s speech, by itself, violates our constitutional rights and liberties is a small subset of the government’s multitudinous expressive choices. But such a universe nevertheless exists. To help us identify this universe, I propose that we consider a series of questions about the effects of, and the motivations underlying, the government’s speech—questions that suggest different ways of thinking about when and why the government’s speech is sometimes constitutionally dangerous.

So To Speak Podcast: Caitlin Flanagan & Greg Lukianoff in dialogue

Caitlin Flanagan (Atlantic Magazine)

In this episode of So to Speak: The Free Speech Podcast, we are joined by The Atlantic magazine Staff Writer Caitlin Flanagan and FIRE President and CEO Greg Lukianoff to discuss a wide range of topics, including Caitlin’s articles that touch on free speech, her growing up in Berkeley, Calif. the daughter of a professor, and newsroom orthodoxies and censorship.

Show notes:

Stone in conversation at Amherst College

In this conversation with Professor Stone, we discuss whether (and which) limitations on speech — in the public arena, in higher education — would improve our democracy. Geoffrey Stone is the Edward H. Levi Distinguished Service Professor at the University of Chicago. He is the author or co-author of many books on constitutional law, including, among others, Leaks, National Security and Freedom of the Press (forthcoming 2021); Democracy and Equality: The Enduring Constitutional Vision of the Warren Court (2020); and The Free Speech Century (2019).

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2021-2022 SCOTUS term: Free expression & related cases

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