Posts Tagged ‘First Amendment’

Oral argument in Friedrichs v. California Teachers Association

On Jan. 11, the Supreme Court hears what may well be the most important case of the term. In Friedrichs v. California Teachers Association, 10 teachers have challenged a state requirement that they support political causes with which they disagree and that hurt their students.

At issue is a kind of law that exists in 25 states which forces public-sector workers either to join a union or pay an amount that covers the cost of the union’s collective bargaining. For California teachers, that means annual dues of about $1,000 or “agency fees” of about two-thirds that amount.

Ilya Shapiro and Jason Bedrick, Orange County Register. More: Shapiro and Jayme Weber, The Federalist; Richard Epstein, Robert Alt first, second (empirical evidence that unions can do well even when nonmembers not obliged to pay agency fees), third (stare decisis) posts, George Will. Earlier on Friedrichs and its predecessor cases Harris v. Quinn and Knox v. SEIU. A contrary view: New York Times editorial.

Free speech roundup

  • “Charlie Hebdo editor: Censorship must not win” [Charb/New York Post] Today, on anniversary of that attack, Cato hosts free speech attorney Robert Corn-Revere on “The Assassin’s Veto,” with comments from GWU lawprof Catherine Ross, moderated by John Samples [details, and watch live]
  • Florida lawmakers muzzle doctors’ comments to patients regarding guns. 11th Circuit says okay. No, not okay [Ken White, Eugene Volokh]
  • The ‘speech integral to criminal conduct’ exception, important in early free speech law, has come roaring back [Eugene Volokh; for the role of this doctrine in the Oregon cake case, see my post then and his]
  • Good news if you’re a Wisconsin conservative who forgot to archive your emails: that nice John Doe prosecutor secretly did it for you [Watchdog]
  • From Federalist Society national lawyers’ convention, Prof. Nicholas Quinn Rosenkranz interviews Kirsten Powers on her new book The Silencing (wobbly audio in early minutes, which eventually clears);
  • “Ex-tenant barred from saying that ex-landlord had been in the Witness Protection Program, ‘[r]egardless of the truth or falsity of this information'” [Volokh]
  • Lawprof Eric Posner wants to roll back First Amendment to curb ISIS recruitment. Hell, no [ABA Journal, Anthony Fisher/Reason, Ken White/Popehat]

California AG wants nonprofits’ donor lists

“Do you donate to the Sierra Club or the National Rifle Association? California Attorney General Kamala Harris wants to know who you are, what your address is and how much you give….

“Every American has the right to support the causes we believe in without the fear of harassment and retaliation. Disclosure mandates undermine this basic freedom, dry up donations to charities and silence political speech.” [Jon Riches, Sacramento Bee]

Free speech roundup

  • Venezuela files suit in U.S. against American website, Dolar Today, that is critical of its currency policies [George Selgin]
  • Michigan: “Felony prosecution for distributing pro-jury-nullification leaflets outside courthouse” [Eugene Volokh, earlier here, here, etc.] More: Judge tosses Denver D.A.’s attempt to jail jury nullification pamphleteers [Jacob Sullum, earlier]
  • Federal agencies should not get to decide for themselves whether they’re violating the First Amendment [Ilya Shapiro, Cato on cert petition in POM Wonderful v. Federal Trade Commission]
  • “After all, a wall can be built around many things, but not around the First Amendment.” One election lawyer’s response to cease/desist letter from Donald Trump [Chris Cillizza/Washington Post, letter courtesy Politico]
  • Court in Turkey considering a doctor’s comparison of Turkish President Erdogan with “Lord of Rings” character Gollum, and the results are preciousss [Sarah McLaughlin, Popehat]
  • Update on climatologist Michael Mann’s defamation suit, still in progress [Jonathan Adler, earlier]
  • Attacks on the right to speak one’s mind are multiplying. Would better civics education help? [George Leef, Forbes]

Lawsuit accuses Facebook of abetting terror

A lawsuit filed in New York accuses Facebook of allowing its service to used by Palestinian groups “to incite violent attacks against Israeli citizens.” Eugene Volokh predicts the case “is going nowhere” given both the First Amendment and Section 230, “47 U.S.C. § 230 — [which] prevents Internet service and content providers from being held liable for speech by their users.” More: Daniel Fisher notes a publicity angle.

“National Constitution Center’s ‘Interactive Constitution’”

Recommended by Eugene Volokh, the National Constitution Center’s “Interactive Constitution“. Its description:

On this site, constitutional experts interact with each other to explore the Constitution’s history and what it means today. For each provision of the Constitution, scholars of different perspectives discuss what they agree upon, and what they disagree about. These experts were selected with the guidance of leaders of two prominent constitutional law organizations — The American Constitution Society and The Federalist Society.

The writers include many familiar names and every contribution I’ve read so far, on both sides of questions, has been of high quality.

WSJ on climate RICO

An editorial in this morning’s Wall Street Journal is blunt:

Advocates of climate regulation are urging the Obama Administration to investigate people who don’t share their views.

Last month George Mason Professor Jagadish Shukla and 19 others signed a letter to President Obama, Attorney General Loretta Lynch and White House science adviser John Holdren urging punishment for climate dissenters. “One additional tool — recently proposed by Senator Sheldon Whitehouse — is a RICO (Racketeer Influenced and Corrupt Organizations Act) investigation of corporations and other organizations that have knowingly deceived the American people about the risks of climate change, as a means to forestall America’s response to climate change,” they wrote.

In other words, they want the feds to use a law created to prosecute the mafia against lawful businesses and scientists. … [RICO] can inflict treble damages upon a defendant. Enacted to stop organized crime and specifically to prosecute individuals tied to loansharking and murder-for-hire, it was long seen as so powerful a tool that the government warned prosecutors to limit its use.

The scientists’ RICO letter was “inadvertently posted” on the website of a group almost entirely funded by taxpayers [Ian Tuttle, National Review Online; Coyote] Rob Nikolewski at Watchdog.org has more on the letter and its aftermath, and quotes me:

Walter Olson, senior fellow at the libertarian Cato Institute’s Center for Constitutional Studies, thinks that’s a dangerous step to take.

“This is core political persuasion,” Olson told Watchdog.org. “If this is illegal racketeering, then potentially an awful lot of things that people debate about are also illegal racketeering … It’s a dangerous power because it won’t be used even-handedly.”

Earlier coverage here, here, etc. Some possible insight into litigation strategies of climate-RICO promoters at Inside Climate News here and here.

“Using RICO against climate change skeptics an attack on free speech”

I’m interviewed at Vermont Watchdog about the truly terrible idea of aiming a civil RICO/racketeering action or investigation against the forces of “climate denial” over wrongful advocacy. The notion seems to have some well organized friends, including Sen. Sheldon Whitehouse (D-R.I.) and, more recently, twenty scientists who recently signed a letter calling for such a probe. “I have no idea how it affects the First Amendment” says one of the letter’s signers, a Vermont scientist, according to a companion report. I should note that when I speak of RICO in the interview transcript, I am referring to the civil-litigation side of the law (“civil RICO”) as distinct from the law’s other wing, “criminal RICO.”

I note, and reject, the idea that the First Amendment protects only truthful speech and thus has no application here because climate skepticism is false. (As Cato and many others argued in last year’s Supreme Court case of Susan B. Anthony List v. Driehaus, controversial speech need not be true to be protected, and in practice an “only truth has rights” rule would give the state a stifling power to punish advocacy in debates that it considers settled.) In substantial part, I note, debate in Washington (and not just in Washington) proceeds by way of advocates’ deployment of half-truths, selectively marshaled data, scientific studies with agendas, and so forth. It is common for both sides to use these techniques. The same techniques are also accepted as standard currency within the adversary process itself, in which the law takes such pride, which makes it particularly absurd to propose defining it as unlawful racketeering to “use dubious information to advance a cause.”

Among those promoting this bad idea: BoingBoing, often regarded as a pro-free-speech site.

P.S. Adapted together with an earlier post into one at Cato at Liberty.