- Supreme Court grants certiorari (as Cato had urged) in Friedrichs v. California Teachers Association, on First Amendment rights of individual public employees against unions, potentially major sequel to Harris v. Quinn (our coverage) and Knox v. SEIU (our coverage). More: Jason Bedrick, Cato;
- More First Amendment: On same day, high court says Texas can turn down Confederate-flag license plates but that town of Gilbert, Ariz. impermissibly took content into account in regulating roadside signs [Lyle Denniston; Eugene Volokh on Gilbert and earlier, and on license plates] Ilya Shapiro has a wrap-up of other end-of-term cases;
- Paging judicial-independence buffs: study finds Obama stands out for aggressive comments on pending SCOTUS cases [W$J via Jonathan Adler]
- Abercrombie v. EEOC followup (earlier): If Thomas’s dissent has the courage of its convictions, maybe it’s because he was longest-serving chairman in EEOC history [Tamara Tabo] “SCOTUS requires employers to stereotype in ruling for EEOC in hijab-accommodation case” [Jon Hyman] Yes, employers can still have dress codes, but read on for the caveat [Daniel Schwartz]
- “Illinois Uses Racial Preferences for No Good Reason,” Seventh Circuit take note [Ilya Shapiro and Julio Colomba, Cato]
- Feds can refuse to register a “disparaging” trademark. Consistent with the First Amendment? [Shapiro, Cato]
- More from Ilya Somin on anniversary of eminent domain Kelo v. New London decision [one, two, more]
Another step toward criminalizing advocacy: writing in the Washington Post, Sen. Sheldon Whitehouse (D-R.I.) urges the U.S. Department of Justice to consider filing a racketeering suit against the oil and coal industries for having promoted wrongful thinking on climate change, with the activities of “conservative policy” groups an apparent target of the investigation as well. A trial balloon, or perhaps an effort to prepare the ground for enforcement actions already afoot?
Sen. Whitehouse cites as precedent the long legal war against the tobacco industry. When the federal government took the stance that pro-tobacco advocacy could amount to a legal offense, some of us warned tobacco wouldn’t remain the only or final target. To quote what I wrote in The Rule of Lawyers:
In a drastic step, the agreement ordered the disbanding of the tobacco industry’s former voices in public debate, the Tobacco Institute and the Council for Tobacco Research (CTR), with the groups’ files to be turned over to anti-tobacco forces to pick over the once-confidential memos contained therein; furthermore, the agreement attached stringent controls to any newly formed entity that the industry might form intended to influence public discussion of tobacco. In her book on tobacco politics, Up in Smoke, University of Virginia political scientist Martha Derthick writes that these provisions were the first aspect in news reports of the settlement to catch her attention. “When did the governments in the United States get the right to abolish lobbies?” she recalls wondering. “What country am I living in?” Even widely hated interest groups had routinely been allowed to maintain vigorous lobbies and air their views freely in public debate.
By the mid-2000s, calls were being heard, especially in other countries, for making denial of climate change consensus a legally punishable offense or even a “crime against humanity,” while widely known advocate James Hansen had publicly called for show trials of fossil fuel executives. Notwithstanding the tobacco precedent, it had been widely imagined that the First Amendment to the U.S. Constitution might deter image-conscious officials from pursuing such attacks on their adversaries’ speech. But it has not deterred Sen. Whitehouse.
Law professor Jonathan Adler, by the way, has already pointed out that Sen. Whitehouse’s op-ed “relies on a study that doesn’t show what he (it) claims.” And Sen. Whitehouse, along with Sen. Barbara Boxer (D-Calif.) and Edward Markey (D-Mass.), has been investigating climate-dissent scholarship in a fishing-expedition investigation that drew a pointed rebuke from then-Cato Institute President John Allison as an “obvious attempt to chill research into and funding of public policy projects you don’t like…. you abuse your authority when you attempt to intimidate people who don’t share your political beliefs.”
The U.S. Supreme Court will hear oral argument March 23 in the case of Walker v. Texas Division, Sons of Confederate Veterans, which on its face raises a relatively specialized issue — having offered to print specialty license plates for motorists, may the state of Texas then, as its statutes direct, “refuse to create a new specialty license plate if the design might be offensive to any member of the public”? (emphasis added).
The lawfulness of government cooperation in speech, however, should not turn on whether the speech “might be offensive to any member of the public,” a new Cato brief argues. One reason is the potential for subjectivity and inconsistency — Texas currently approves many license plates that would offend some people, but declined to approve one including a tiny version of the Confederate battle flag. But a more fundamental reason is that offensive speech itself can be a valuable part of the marketplace of ideas and should not lose First Amendment protection simply because someone takes offense at it. (The brief takes no position on whether specialty license plates count as a “quasi-public forum” or something else, a question that might keep the Court from needing to reach the offense issue; it also notes that the case at hand does not include any of the exceptions the Court has recognized to speech freedom, such as obscenity, incitement, or “true threat.”)
Like Cato’s brief last year in the “truthiness” Ohio campaign speech case, this one falls into the new category of “funny” brief — including references to jokes and comedy sequences, dropping cites to Full House and America’s Funniest Home Videos, and including among its signers Cato fellow P.J. O’Rourke as well as the Comic Book Defense Fund and noted First Amendment advocates Nat Hentoff, Nadine Strossen, and Martin Garbus. (It also includes a number of words often considered offensive, and which seldom find a place in Supreme Court briefs.)
Ilya Shapiro, counsel of record (joined by co-counsel, and noted First Amendment lawyer, Robert Corn-Revere) writes at the Cato blog:
Not only does the right to be offensive secure the livelihood of our favorite comedians, it protects scientific and medical researchers in their quest to push the limits of human knowledge into fields once considered taboo and enables one religion’s heretic to become another’s prophet. And should a member of a third faith, or no faith at all, wish to define himself as an iconoclast by mocking, degrading, or insulting that heretic cum prophet—be it Muhammad, L. Ron Hubbard, or Mark Steyn — that too, is protected by the First Amendment.
There’s no “offensiveness” exception to the First Amendment and it would be insulting for the Supreme Court to allow Texas to tell us what’s offensive. Those who are offended shouldn’t have a veto over free expression and putative offenders should be judged in the court of public opinion.
Another summary: Ronald Collins, Concurring Opinions.
- Departing NPR ombudsman claims U.S. free speech guarantees wouldn’t protect Charlie Hebdo, many on Twitter would like to set him straight on that [Edward Schumacher-Matos] More: Hans Bader.
- Ninth Circuit urged to revisit whether First Amendment protects right to refer to real-world players in fantasy sports [Volokh]
- Multi-party parliamentary panel in Britain proposes banning persons who “spread racial hatred” from Twitter, Facebook, other social media [BBC] Visiting newsagents: “Police from several UK forces seek details of Charlie Hebdo readers” [The Guardian]
- Ecuador regime continues counterattack against social media critics at home and abroad [Adam Steinbaugh (Twitter suspends account “for posting DMCA notice”), The Guardian, earlier] Cartoonist “Bonil” put on trial [Freedom House]
- Burt Neuborne, Robert Corn-Revere debate Williams-Yulee v. Florida Bar case: “Should elected judges be allowed to ask for donations?” [National Constitution Center podcast with Jeffrey Rosen via Ronald Collins, Concurring Opinions]
- Second Circuit confirms: law allowing expungement of arrest records doesn’t require media to go back and delete related news stories [AP, Volokh]
- Rakofsky suit against legal bloggers and other defendants (more than 80 in all) sputters toward apparent conclusion [Turkewitz, more (need for stronger protections against speech-chilling suits under New York law)]
A story from Frederick County, Maryland, where I live. I wrote it up briefly at my blog Free State Notes, and it’s making the rounds all over the web, with Eugene Volokh and Steve Hayward among the first to comment. The Frederick News-Post, whose reporter Bethany Rodgers was the target of Councilman Delauter’s threat, has a write-up as well as an editorial (read the first letter of each paragraph). More: Van Smith, Baltimore City Paper (& Ed Krayewski, Reason “Hit and Run”; Andy Knight, Community Newspaper Holdings publications).
Update: Delauter has apologized here.
- Long before North Korea “Interview” episode, Hollywood was caving repeatedly to power-wielders [Ron Maxwell, Deadline] Relevant: “A Tyranny of Silence,” new book by Danish-Muhammad-cartoons editor Flemming Rose published by Cato Institute [Kat Murti, earlier on the Danish cartoons, related Liberty and Law]
- Score 1 for First Amendment, zero for Prof. Banzhaf as FCC rejects “Redskins” broadcast license attack [Volokh, earlier including the prof’s comment on that post]
- Court dismisses orthopedist’s defamation suit against legal blogger Eric Turkewitz [his blog]
- “Hate speech” notions reach the Right? Author claims “justice” would mean incitement “charges” vs. liberal talkers [Ira Straus, National Review]
- Wisconsin prosecutors said to have eyed using John Doe law to aim warrants, subpoenas at media figures Sean Hannity, Charlie Sykes [Watchdog] More: George Leef on California vs. Americans for Prosperity;
- “British journalist sentenced for questioning death toll in Bangladeshi independence war” [Guardian] Pakistan sentences Bollywood actress Veena Malik to 26 years for acting in supposedly blasphemous TV wedding scene [The Independent] Erdogan regime in Turkey rounds up opposition media figures [Washington Post editorial]
- “Is it a crime to say things that make someone ‘lack self-confidence in her relations with the opposite sex and about her body-build’?” [Volokh; Iowa Supreme Court, affirmed on other grounds]
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)
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.
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.