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First Amendment

In exchange for relief from a state-mandated stormwater remediation fee, and direct government subsidies to pay for property improvements intended to reduce runoff, some churches in Prince George’s County, Maryland have made an unusual commitment to the authorities. I explain, and raise questions, at Free State Notes. Since when does government get the power to cut churches tax breaks in exchange for their agreement to preach an approved line? (& Bader, CEI)

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Next Monday, Nov. 24, Cato will host a luncheon panel on the 1956 Supreme Court case of One, Inc., v. Olesen, a little case with big implications that reverberate to this day. Panelists include attorneys Lisa Linsky (McDermott Will & Emery) and Robert Corn-Revere (Davis Wright Tremaine) and author/Brookings fellow Jonathan Rauch, and I’ll be moderating. From the description:

Sixty years ago the U.S. Supreme Court’s first case on gay rights was set in motion. It has been neglected through many of the intervening years but is now recognized as a landmark in the law of free speech. In One, Inc., v. Olesen, a fledgling Los Angeles–based magazine seeking to advance the interests of homosexuals sued after the Post Office declared it obscene and banned its distribution through the mail. Against long odds, facing the full force of the federal government, and with little support from the civil libertarians of the day, the small publication persevered to the Supreme Court—and its unexpected victory there opened up legal space for other dissenting and unpopular opinions to thrive. Join us as three experts discuss the One, Inc. case as a turning point in First Amendment law and an example of how freedom of expression works to vindicate the interests of those on society’s margins. We’ll also learn about ongoing efforts to get the U.S. government to open its archives to shed light on its handling of the case.

Register free or watch online at this link.

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At least one contributor to the NYT’s “Room for Debate” roundtable seems confident lawmakers can finesse the First Amendment dangers of proposals broad enough to criminalize some instances of saying “hello” to a stranger on the street. Scott Greenfield offers one criminal defense lawyer’s perspective.

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“The Federal Communications Commission will consider punishing broadcasters for using the Washington Redskins’ [name] on air, FCC chairman Tom Wheeler said during a conference call with reporters, according to Reuters.” [Sports Illustrated] It won’t if it wants its actions to stand up in court, though [Eugene Volokh, and more on the role of frequent Overlawyered mentionee John Banzhaf]

More: Prof. Banzhaf responds in comments.

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…yet deplore the Citizens United decision, you might have a consistency problem [A. Barton Hinkle, syndicated]

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Free speech roundup

by Walter Olson on September 30, 2014

  • Coverage of Cato Constitution Day panel on First Amendment with Nadine Strossen, P.J. O’Rourke, Eric Rassbach, Ilya Shapiro [Concurring Opinions] And First-Amendment-oriented articles in the latest Cato Supreme Court Review: Judge David Sentelle on freedom of speech as liberty for all and not just for the organized press, Allen Dickerson on McCutcheon v. FEC, Ilya Shapiro on SBA List v. Driehaus, and Trevor Burrus on protest buffer zones;
  • Eric Holder “the worst Attorney General on press freedom issues in a generation, possibly since Richard Nixon’s John Mitchell” [Trevor Timm]
  • “7 Things Cracked Got Wrong About Free Speech” [Greg Lukianoff of FIRE, who has a new short book out entitled "Freedom From Speech"]
  • As ACLU recognizes, Arizona law purportedly banning revenge porn would do more than that [Masnick, Popehat, Greenfield, Sullum/Reason]
  • Critical overview of “media reform” movement led by wildly misnamed pressure group Free Press [Barbara Joanna Lucas, Capital Research Center]
  • In lawsuits against Yelp arising from bad reviews, courts have not been impressed by theory that the service extorts reviewed businesses [Paul Alan Levy; a restaurateur upset at Yelp strikes back in a different way]
  • Proposal to make scientific misconduct a crime “would seem to raise serious First Amendment problems” [Howard Wasserman]

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Spotting their adversaries

by Walter Olson on September 29, 2014

Nicholas Quinn Rosenkranz on the significance of the IRS having targeted for unfavorable scrutiny “organizations involved in….educating on the Constitution and the Bill of Rights.” [Volokh Conspiracy] “Presidents have always sought to push against the constitutional limits of their power; but never have they targeted those who merely teach about such limits.”

September 12 roundup

by Walter Olson on September 12, 2014

  • ObamaCare, Common Core, EPA policy all raise specter of federal commandeering of state governments [Richard Epstein and Mario Loyola, The Atlantic] Vocally supporting Common Core, William Bennett provides new reasons to be queasy about it [Neal McCluskey, Cato]
  • Mom lets six-year-old play within sight of his own front door. Then Child Protective Services arrives [Haiku of the Day]
  • Study finds no evidence California cellphone ban reduced accidents [The Newspaper]
  • Or maybe if you’ve been in good health for 13 years it’s okay to let the grievance slide: pols, union leaders urge unimpaired WTC rescuers to enroll for possible future compensation [AP/WCBS]
  • “Thomson Reuters Thinks Not Responding To Their Email Means You’ve Freely Licensed All Your Content” [Mike Masnick, TechDirt]
  • New frontiers in urban expropriation: San Francisco imposes crushing new “relocation assistance” burden on rental owners [Pacific Legal Foundation]
  • A lesson in standing up for individual liberty, and not being discouraged by setbacks [my Cato Institute piece on Lillian Gobitis Klose's flag-pledge case, Donald Boudreaux/Cafe Hayek]

Much more than Citizens United

by Walter Olson on September 11, 2014

This week forty-eight senators are seeking to amend the Bill of Rights so as to give the government more power to control campaign speech. While some advocates pretend that the effect of the amendment would “only” be to overturn the Supreme Court’s decision in Citizens United, it would actually go a good bit farther than that. [Jacob Sullum, Reason; George Will; Trevor Burrus at Forbes ("political stunt," yet "terrifying"); related, David Boaz]

Concur: ACLU. Update: measure fails.

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Whichever way you come down on the sidewalk-buffer-zone series of cases, it’s time to retire the wheeze about how the U.S. Supreme Court is supposedly being inconsistent by not inviting protesters up really close to its entrance doors — though the taunt does conceal something of a genuine point about how smaller, poorer organizations are more likely to have to put up with the annoyances and inconveniences of public space and its concomitant public forum doctrine, as they also do when the forums involved are public parks or schools [Eugene Volokh, earlier]

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Among its other duties, the Federal Election Commission hands out — under conditions that may involve some discretion — hall passes giving permission for political candidates to publish books without legal hassle. [Providence Journal editorial] Last fall, in a (highly recommended) Yale Law Journal piece, Stanford law professor and former appeals judge Michael McConnell proposed that the Supreme Court’s much-demonized Citizens United decision would have rested on firmer ground had the Court characterized it as a free press rather than a free speech ruling; the case arose from a complaint against the makers of a documentary critical of Hillary Clinton.

In more than a dozen states in recent years, governors, legislators or both have arranged through law or regulation to install unions to represent the fast-growing ranks of home health and child care workers, who in many instances are family members receiving a state stipend for looking after their own loved ones. In Harris v. Quinn, a five-member majority of the U.S. Supreme Court ruled that it violates the First Amendment rights of these recipients to require them to pay dues to a union of whose views and activities they may not approve. It did not alter — for now, at least — the 1977 Abood precedent under which full-fledged public workers can be required to pay such dues, instead recognizing a new category of “partial public employees.”

I explore some of the implications in this Cato podcast with interviewer Caleb Brown. Earlier on Harris v. Quinn here.

P.S. A tip-off from SCOTUS on where it intends to take Harris logic? One view from the Left [In These Times] Ruling is rebuke to various governors, including Maryland’s Martin O’Malley, who have employed executive orders to unionize home health carers [Marc Kilmer, MPPI; related, George Leef] Eugene Volokh dissents on the underlying “bedrock” First Amendment issue [Volokh Conspiracy] Will a teacher’s case called Friedrich v. CTA be the vehicle for revisiting Abood? [Jason Bedrick, Cato] And some clues that the first draft of Harris v. Quinn might have overturned Abood, before the majority reconsidered and pulled back [Jack Goldsmith, Sachs, Homer, at On Labor]

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We warned that there were First Amendment problems with the overbreadth of these legal proposals, and the New York Court of Appeals sees things the same way. [People v. Marquan M.; Volokh] Two dissenters would have cut down the scope of the law significantly and deemed the remainder constitutional, but the majority invalidated it in its entirety, whether applied to minors or persons of full legal age. We’ve earlier criticized cyber-bullying enactments and proposals in Maryland, Virginia and elsewhere.

Cross-posted from Cato at Liberty, a guest post from my Cato colleague Andrew Grossman:

Enough is enough, the Supreme Court ruled today in Harris v. Quinn regarding the power of government to force public employees to associate with a labor union and pay for its speech. Although the Court did not overturn its 1977 precedent, Abood, allowing states to make their workers contribute to labor unions, it declined to extend that principle to reach recipients of state subsidies—in this case, home-care workers who receive modest stipends from the state of Illinois’ Medicaid program but are not properly considered “employees” of the state.

The Court is right that Abood is “something of an anomaly” because it sacrifices public workers’ First Amendment rights of speech and association to avoid their “free-riding” on the dues of workers who’ve chosen to join a union, the kind of thing that rarely if ever is sufficient to overcome First Amendment objections. But Abood treated that issue as already decided by prior cases, which the Harris Court recognizes it was not–a point discussed at length in Cato’s amicus briefAbood was a serious mistake, Harris concludes, because public-sector union speech on “core issues such as wages, pensions, and benefits are important political issues” and cannot be distinguished from other political speech, which is due the First Amendment’s strongest protection. A ruling along those lines would spell the end of compulsory support of public-sector unions, a major source of funds and their clout.

It was enough, however, in Harris for the Court to decline Illinois’ invitation “to approve a very substantial expansion of Abood’s reach.” Illinois claimed that home-care workers were public employees for one purpose only: collective bargaining. But these workers were not hired or fired by the state, supervised by the state, given benefits by the state, or otherwise treated as state workers. And for that reason, Abood’s purposes, which relate only to actual “public employees,” simply do not apply. Were the law otherwise, the Court observed, “a host of workers who receive payments from a governmental entity for some sort of service would be candidates for inclusion within Abood’s reach.”

While Harris is not a watershed opinion that remakes labor law consistent with First Amendment principles, it does put an end to the forced unionization of home-based workers, a practice that has spread to nearly a dozen states and had provided a substantial number of new workers to the labor movement in recent years. Harris also lays the groundwork for a challenge to what it calls “Abood’s questionable foundations.” If recent Roberts Court precedents like Shelby County and Citizens United are any guide, Harris is a warning shot that the Abood regime is not long for this world and that the next case will be the one to vindicate all public workers’ First Amendment rights.

In January Andrew published a thorough preview of the issues of the case. Earlier coverage here.

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Why should trademark law ban “disparagement” in first place? Caleb Brown interviews me on the Washington Redskins case for the Cato Daily Podcast. Earlier here.

David Post has a post at the Volokh Conspiracy laying out the unexpectedly complicated relationship between the federal Lanham Act and state trademark common law. And he presents the First Amendment problem with “disparagement” doctrine head on:

…the constitutional question is also, for me, pretty cut-and-dried; this is precisely the sort of thing the First Amendment prohibits: an agency of the federal government doling out benefits on the basis of whether or not you have used a word or phrase that is ‘disparaging,’ or that “bring into contempt, or disrepute” any “institutions, beliefs, or national symbols.” … [Whether my view of the matter is in tune with current doctrine is another question entirely]

I’ll be one of the panelists on a webinar this Friday at 1 p.m. Eastern (fee-based, CLE credit available) presented by the ABA’s State and Local Government Law Section on Town of Greece v. Galloway, the Supreme Court’s recent case on invocational prayer at town councils and similar legislative bodies (earlier here and here). Other panelists include Eric Rassbach of the Becket Fund for Religious Liberty and Mark Burkland of Holland & Knight, while Patricia Salkin, Dean and Professor of Law at Touro Law Center, will serve as moderator. More at Inverse Condemnation.

I discuss yesterday’s decision in Town of Greece v. Galloway at Secular Right, and conclude that Justice Anthony Kennedy’s carefully measured majority opinion, while satisfying neither side in the culture wars, is one I and most other Americans can live with (& welcome Eugene Volokh, SCOTUSBlog, and Scott Greenfield readers).

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“…Yet”. Daniel Fisher explains yesterday’s 5-4 decision by the Supreme Court in McCutcheon v. FEC, which may be more significant as a clue to the direction of future Court thinking on campaign finance and the First Amendment as for its actual direct effect. Cato submitted an amicus brief on the side that prevailed, and my colleagues Trevor Burrus and Ilya Shapiro have flash reactions (earlier). More: Ilya Shapiro now has a longer treatment out at SCOTUSBlog.

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