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First Amendment

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.

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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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New WSJ op-ed by Eugene Volokh and my colleague Ilya Shapiro, with which I agree 100%: “We support the extension of marriage to same-sex couples. Yet too many who agree with us on that issue think little of subverting the liberties of those who oppose gay marriage. Increasingly, legislative and judicial actions sacrifice individual rights at the altar of antidiscrimination law.” Existing precedent affords a handy if narrow way to reverse New Mexico’s wrong-headed Elane Photography decision: “The Supreme Court’s ruling in Wooley guarantees the right of photographers, writers, actors, painters, actors, and singers to decide which commissions, roles or gigs they take, and which they reject.”

Related on bake-my-cake laws: in the absence of more robust rights to freedom of association, could we at least narrow what’s a public accommodation? [Scott Shackford, Reason; David Link, Independent Gay Forum (on precedent of landlord reluctance to rent to cohabitors] Earlier on photography and cake cases here, here, here, here, here, here, here, here, etc.

P.S. Cato podcast with Caleb Brown interviewing Ilya Shapiro on the topic.

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Trevor Burrus on the serious side of the case that elicited Cato’s humorous amicus brief the other day [Forbes]:

Susan B. Anthony List v. Driehaus… will be argued [before the Supreme Court] in April. The case is a challenge to Ohio’s bizarre statute prohibiting knowingly or recklessly making “false” statements about a political candidate or ballot initiative. In other words, the Ohio Election Commission (OEC) essentially runs a ministry of truth to which any citizen can submit a complaint. Amazingly, twenty other states have such laws.

Laws against lying in political speech are not administered by disinterested truth seekers, but by people with their own political convictions. They chill large amounts of truthful speech and deprive the public of hearing a robust debate on the issues. And, as we will see, they are used by political opponents to turn campaigning into litigation.

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It’s actually on a serious subject: can a state (Ohio) purport to ban false, exaggerated or “truthy” speech about candidates, or does that impermissibly chill speech protected by the Constitution’s First Amendment? My colleagues Ilya Shapiro, Trevor Burrus and Gabriel Latner co-authored it on behalf of political humorist/Cato fellow P.J. O’Rourke in the pending SCOTUS case of Susan B. Anthony List v. Driehaus. Read it here, alongside Ilya Shapiro’s summary, and here’s David Lat of Above the Law calling it the “Best Amicus Brief Ever.

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Free speech roundup

by Walter Olson on January 15, 2014

  • Setback for climate scientist Michael Mann in defamation suit against critics [Jonathan Adler, Mark Steyn, earlier here and here; update, Mann wins a round] Reporters Committee for Freedom of the Press has taken interest on defendants’ side [Steyn] “Blogger’s Incarceration Raises First Amendment Questions” [NYT on Shuler case in Alabama, on which earlier; more]
  • Religious liberty: “When thought is a crime, no other freedom can long survive.” [Doug Bandow]
  • Nigeria’s new jail-the-gays law is brutally repressive toward speech and association. Oil-rich country gets upwards of $500 million in US foreign aid a year [Reuters, AP and followup, Al-Jazeera]
  • Members of Ramapough tribe in New Jersey sue Hollywood over “Out of the Furnace” depiction [AP]
  • “California’s New Law Shows It’s Not Easy To Regulate Revenge Porn” [Eric Goldman]
  • Catching up on the Ampersand case, where the NLRB got slapped down trying to restrict newspaper owner’s First Amendment rights [Harry G. Hutchison]
  • Video interview with noted civil libertarian Harvey Silverglate [Cato]

I’ve got a new post at Cato asking how that could have come to be. Earlier on Elane Photography v. Willock here, here, etc.

Reacting to my Cato post, a couple of readers have responded, in effect: Isn’t the ACLU just a doctrinaire Left-liberal organization these days, rather than a bulwark of civil liberties? To which my answer is: I’d describe it as an organization with lively internal divisions, some factions of which push it in a doctrinaire Left direction, others of which want it to be more of a robust civil liberties organization. (As witness last year’s “Mayors vs. Chick-Fil-A” controversy, in which the ACLU of Illinois took a strong and clear civil libertarian stand while the ACLU of Massachusetts seemed to lean more toward a doctrinaire-Left position.) Some speak ironically of the “civil liberties caucus” that soldiers on thanklessly within the ACLU. I want to encourage that caucus and let it know it is appreciated. (& Stephen Richer/Purple Elephant, Coyote).

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“A federal appeals court has shot down a Massachusetts consumer protection case against two doctors, a medical journal and its publisher over an allegedly flawed article cited by defendants in birth-injury medical malpractice cases. That means plaintiffs’ attorneys will have to challenge the article’s validity in each case in which the defense wishes to cite it.” The First Circuit did not reach the issue of constitutional free speech, but upheld a lower court’s ruling that the plaintiff had not shown adequately that expert testimony reliance on the allegedly faulty article had resulted in the loss of the litigation in question. [Sheri Qualters, NLJ] Earlier on A.G. v. Elsevier here.

The Supreme Court yesterday granted certiorari in Harris v. Quinn, a case raising potentially major issues of federal labor law and forced political association. Via SCOTUSBlog:

Issue: (1) Whether a state may, consistent with the First and Fourteenth Amendments to the United States Constitution, compel personal care providers to accept and financially support a private organization as their exclusive representative to petition the state for greater reimbursements from its Medicaid programs; and (2) whether the lower court erred in holding that the claims of providers in the Home Based Support Services Program are not ripe for judicial review.

My colleagues at the Cato Institute filed an amicus brief seeking cert in the case. More: Will Baude.

A plaintiff’s lawyer is suing a medical journal and two doctors for publishing a case report that makes it harder to win some birth-injury lawsuits.

Here are the details, as reported by Sheri Qualters of the National Law Journal. Some newborns are found to be suffering from brachial plexus injury, a type of harm to a child’s shoulder, arm, or hand that in a minority of cases results in permanent disability (so-called Erb’s palsy or a number of related conditions). A large volume of birth-injury litigation goes on as a result, in part because courts have tended to accept the idea that the only medically recognized cause of those conditions in newborns is excessive or traumatic use of physical force by clinicians (“traction”). In 2008, however, the American Journal of Obstetrics & Gynecology published a case report of a delivery in which an infant was found to be suffering such injury although the physician by her own account had not applied any excessive traction during the birth. If instead natural forces of labor could cause the dislocation resulting in the condition, many lawsuits might rest on shakier ground. Since then, defense lawyers have cited the report — by Henry Lerner of Harvard Medical School and Eva Salamon of the Bond Clinic in Winter Park, Fla. — in litigation.

A Boston lawyer who claims to have debunked the Lerner-Salamon case study has proceeded to sue its two authors, Elsevier — which publishes AJOG and many other medical and scientific journals — and Dr. Salamon’s clinic for publishing and refusing to retract it. The damages are said to be $3 million each to two families of infant plaintiffs whose lawsuits did not succeed allegedly because of the case report. The lawsuit invokes a Massachusetts consumer protection law which allows treble damages, and also asks for a court order forbidding the report to be entered as evidence in future litigation. A trial court dismissed the case, in part on the grounds that the plaintiffs had not shown that the article was a material cause of the families’ failure to prevail in the suits. Now the case is on appeal to the First Circuit, where defense lawyers are arguing, inter alia, that if there are weaknesses in the article the remedy for plaintiffs is to introduce evidence to that effect to counter it in trials. “As for its own role, Elsevier argued that applying a state consumer protection law to its published material would violate its free-speech right under the First Amendment.”

First Amendment? Let’s not go to extremes. If we start applying the First Amendment, how are lawyers supposed to silence publications that inconvenience them?

Our “watch what you say about lawyers” tag — which perhaps we should rename as “watch what you say about lawyers or their cases” — is here (cross-posted at Cato at Liberty; & welcome readers from Jesse Walker, Reason, Prof. Bainbridge).

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“Is Money Speech?”

by Walter Olson on September 12, 2013


Eugene Volokh in a Federalist Society video on campaign regulation and the First Amendment. A dissent: Scott Greenfield.

P.S. Beware of setting up a state-level group to promote controversial views on issues, even if promoting candidates is not your primary purpose [Adler on cert petition in Corsi v. Ohio Elections Commission]

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“Kentucky claims that writing an advice column that appears in a newspaper in the state — in the specific case of their complaint, the Lexington Herald-Leader, though it appears in others as well — is not an act of freedom of the press, but rather practicing psychology without the required license.” [Brian Doherty] “John Rosemond has been dispensing parenting advice in his newspaper column since 1976, making him one of the longest-running syndicated columnists in the country.” The Kentucky Board of Examiners of Psychology had its attention called to Rosemond by a local complaint about a column in which he advised parents about how to handle a sullen teen but did not recommend they seek professional help. The Board, along with the state’s attorney general, proceeded to demand that he submit to a cease-and-desist order on such matters as whether he can be bylined as a “psychologist”; Rosemond is licensed as such in his home state of North Carolina, but not in Kentucky. The Institute for Justice is defending Rosemond and has filed an action against the state. [AP]

Update from the Kentucky AG’s office: don’t blame us, we let our lawyers lend themselves out for state agency work and it was by inadvertence that our letterhead was used on what went to Rosemond. As Caleb Brown notes, this opens up new questions even if it answers some others.

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