Posts Tagged ‘First Amendment’

Free speech roundup

  • Supreme Court’s sleeper case of the term, Reed v. Town of Gilbert, may greatly toughen First Amendment scrutiny of many laws [Adam Liptak, New York Times]
  • Authorities to press charges against Washington Post reporter Wesley Lowery and Huffington Post reporter Ryan Reilly, arrested last year in a McDonald’s during Ferguson protests [Newsweek]
  • Having said obnoxious things is grounds for exclusion from Canada. Right? [CTV] Related musings about speech that affronts us [Ken at Popehat]
  • In case paralleling issues in SBA List v. Driehaus, Massachusetts high court strikes down false-campaign-speech law that enabled incumbent to inflict legal woe on critics; state’s attorney general comes off poorly in account [Ilya Shapiro and Gabriel Latner/Cato]
  • Court strikes down of Idaho ag-gag law, and Prof. Volokh notes some parallels to Planned Parenthood covert filming battle;
  • Update: city of Inglewood, Calif. not faring well in effort to use copyright law to keep a critic from putting video clips of its council proceedings on YouTube [Adam Steinbaugh, earlier]
  • Denver digs itself deeper in charges over leafleting by jury nullification activists [Jacob Sullum, earlier]

Free speech roundup

  • “Denver DA charges man with tampering for handing out jury nullification flyers” [Denver Post, earlier New York case covered here, here, here, etc.] More: Tim Lynch, Cato.
  • Occupational licensure vs. the First Amendment: Texas regulators seek to shutter doc’s veterinary advice website [Ilya Shapiro, Cato]
  • Fired for waving rebel flag? Unlikely to raise a First Amendment issue unless you work for the government, or it twisted your employer’s arm [Huntsville (Ala.) Times, Daniel Schwartz]
  • “Twitter joke thieves are getting DMCA takedowns” [BoingBoing]
  • A reminder of Gawker’s jaw-droppingly bad stuff on freedom of speech (“Arrest Climate Change Deniers”) [Coyote, related]
  • Canadian lawyer/journalist Ezra Levant facing discipline proceeding “for being disrespectful towards a government agency” [Financial Post, earlier]
  • “‘Shouting fire in a theater’: The life and times of constitutional law’s most enduring analogy” [Carlton Larson via Eugene Volokh, also Christopher Hitchens on the analogy]

Wrong opinions? No permits for him!

Boston mayor Martin Walsh gives Donald Trump the Chick-Fil-A rush over his immigration opinions [Boston Herald]:

If Donald Trump ever wants to build a hotel in Boston, he’ll need to apologize for his comments about Mexican immigrants first, the Hub’s mayor said.

“I just don’t agree with him at all,” Boston Mayor Martin J. Walsh told the Herald yesterday. “I think his comments are inappropriate. And if he wanted to build a hotel here, he’d have to make some apologies to people in this country.”

More on the use of permitting, licensing, and other levers of power to punish speech and the exercise of other legal rights at Overlawyered’s all-new regulatory retaliation tag. And no, I’m not exactly thrilled with Mayor Walsh for making me take Trump’s side in an argument.

P.S. Now the NYC sequel, from Mayor Bill de Blasio: no more city contracts for the guy with the wrong opinions [The Hill] And welcome readers from the Foundation for Economic Education, which generously calls this blog “indispensable.”

Wisconsin Supreme Court strikes down John Doe II probe

The Wisconsin Supreme Court has struck down the notorious secret prosecution of conservative political figures in the state, the implementation of which included dawn paramilitary raids at the homes of aides to Gov. Scott Walker and leaders of private advocacy groups. Two justices on the seven-member court dissented from key elements of the ruling and one did not participate. From the court’s opinion:

The special prosecutor has disregarded the vital principle that in our nation and our state political speech is a fundamental right and is afforded the highest level of protection. The special prosecutor’s theories, rather than “assur[ing] [the] unfettered interchange of ideas for the bringing about of political and social changes desired by the people,” Roth, 354 U.S. at 484, instead would assure that such political speech will be investigated with paramilitary-style home invasions conducted in the pre-dawn hours and then prosecuted and punished.

And:

Our lengthy discussion of these three cases can be distilled into a few simple, but important, points. It is utterly clear that the special prosecutor has employed theories of law that do not exist in order to investigate citizens who were wholly innocent of any wrongdoing. In other words, the special prosecutor was the instigator of a “perfect storm” of wrongs that was visited upon the innocent Unnamed Movants and those who dared to associate with them. It is fortunate, indeed, for every other citizen of this great State who is interested in the protection of fundamental liberties that the special prosecutor chose as his targets innocent citizens who had both the will and the means to fight the unlimited resources of an unjust prosecution. Further, these brave individuals played a crucial role in presenting this court with an opportunity to re-endorse its commitment to upholding the fundamental right of each and every citizen to engage in lawful political activity and to do so free from the fear of the tyrannical retribution of arbitrary or capricious governmental prosecution. Let one point be clear: our conclusion today ends this unconstitutional John Doe investigation.

Coverage and commentary: Roger Pilon/Cato; Gabriel Malor. The conservative Wisconsin Watchdog has provided extensive coverage in more than 200 stories.

Last year I described the conduct of the prosecution in the case as “stunningly abusive” and wrote:

The citizens of Wisconsin must now demand a full accounting of how these raids could have happened. They should also insist on changes in state law, in particular the “John Doe” law, aimed at ensuring that nothing like them ever happens again.

In dissent, former chief justice Shirley Abrahamson writes that the constitutionality of the search methods used was not under review in the cases at hand. Well known election law academic Rick Hasen laments that the ruling endorses the version of events of Walker aides concerning the raids without a full legal airing, although (he writes) the charges of abusive conduct during the raids were “never fully verified” and are part of a set of “fears which generally do not stand up to scrutiny.” (To be clear about what was going on, the aides in question appear to have been gagged by a court order throughout, though someone on their side appears to have succeeded in eventually conveying the story to the Wall Street Journal and other outlets).

Another reaction yesterday, from a well-known advocacy shop in Washington, D.C., might be summed up as follows: “We need 500 words on the Wisconsin John Doe dismissal, but don’t mention the dawn paramilitary raids or the gag orders.” “OK, can do.

Related: Ilya Shapiro says a petition for certiorari by former Walker aide Kelly Rindfleisch “provides an excellent vehicle for the U.S. Supreme Court to address the degree to which the Fourth Amendment requires a warrant for searching electronic data, tailored to probable cause.”

Oregon: bakers’ statements to national media were “unlawful”

Readers who follow the battles over forfeiture law may recall the recent case in which a North Carolina convenience store owner from whom the government had seized $107,000 without any showing of wrongdoing decided to fight the case in the press as well as in court, backed by the Institute for Justice. Lyndon McLellan’s decision to go public with the dispute drew a menacing letter from a federal prosecutor about the publicity the case had been getting:

“Your client needs to resolve this or litigate it,” Mr. West wrote. “But publicity about it doesn’t help. It just ratchets up feelings in the agency.” He concluded with a settlement offer in which the government would keep half the money.

That case ended happily, but the problem is much broader: many individuals and businesses fear that if they seek out favorable media coverage about their battle with the government, the government will find a way to retaliate, either informally in settlement negotiations or by finding new charges to throw against them.

That such fears might not be without foundation is illustrated by last week’s widely publicized Oregon cake ruling, in which a Gresham, Oregon couple was ordered to pay $135,000 in emotional-distress damages for having refused to bake a cake for a lesbian couple’s commitment ceremony. Aside from the ruling’s other objectionable elements, the state labor commissioner ruled it “unlawful” for the couple to have given national media interviews in which they expressed sentiments like “we can see this becoming an issue and we have to stand firm.” Taking advantage of an exception in free speech law in which courts have found that the First Amendment does not protect declarations of future intent to engage in unlawful discrimination, the state argued – and its commissioner agreed – that the “stand firm” remark along with several similarly general comments rallying supporters were together “unlawful.”

That ought to bother anyone who cares about free speech. I’ve got a piece up at Ricochet.com, my first there, exploring the question in more detail. Check it out [cross-posted from Cato at Liberty].

Similarly today: Ken at Popehat.