- How the courts came to extend First Amendment protection to art, music, movies, and other expression not originally classed as “press” or “speech” [new Mark Tushnet, Alan Chen, and Joseph Blocher book via Ronald Collins]
- Cato amicus: church enterprises should be eligible for recycling program on same terms as secular businesses [Ilya Shapiro and Jayme Weber]
- “A Political Attack On Free Speech And Privacy Thwarted — For Now” [George Leef, Forbes on AFP v. Harris, earlier] Bill filed by Rep. Peter Roskam would keep IRS from collecting names of donors to nonprofits [Center for Competitive Politics]
- Newly enacted Tennessee conscience exemption for psychological counselors and therapists avoids some of the dangers of compelled speech [Scott Shackford, Reason]
- Cook County Sheriff Thomas Dart, benchslapped by Judge Richard Posner after sending credit card companies letters urging them to cut off dealings with Backpage.com, now seeks Supreme Court certiorari review [Ronald Collins, earlier here, here, and here]
- One problem with that Mississippi law: it gives extra protection to some religious beliefs about sex and marriage but not others [Popehat; my guest appearance on Mike Slater show, San Diego’s KFMB]
Enough already with the bans on so-called inessential travel: short of an impending civil war, boycotts, sanctions, and embargos against U.S. states by the governments of other U.S. states and cities are a truly bad idea [Nathan Christensen, Washington Post]
Relatedly, Gillian White quotes me in the Atlantic on North Carolina’s HB 2 controversy, the latest in a series of battles over discrimination law, religion, business, and LGBT persons, at this point almost entirely symbolic to large publics on both sides, with the considerable differences between particular enactments (Georgia, Mississippi, Indiana, etc.) seeming to matter relatively little. Finding accurate reporting on what the employment provisions of North Carolina’s HB 2 would do is not easy, as Robin Shea discovered [Employment and Labor Insider]
Sen. Ligon misstates the scope of North Carolina’s new law when he writes that “the new law simply prevents local governments from forcing business owners to adopt” policies on transgender bathroom use. As a libertarian, I would be fine with the new law if that were all it did, but in fact Sen. Ligon is describing only Part III of the bill. Part I of the bill imposes affirmative, uniform new duties of exclusion on North Carolina government entities such as schools, town halls, courthouses, state agencies and the state university system, taking away what had generally been at local discretion. This not only will inflict needless burdens on a small and vulnerable sector of the public, but presumes to micromanage local governments and districts in an area where they had not been shown to be misusing their discretion. Whatever the merits of the rest of the bill, the provisions on state-furnished bathrooms are a good example of how legislation in haste from the top down can create new problems of its own.
Both sides in the culture war are gearing up for a fight in Congress on the proposed First Amendment Defense Act (FADA), which would establish various rights for persons and institutions who object to same-sex marriage. The bill’s text, however, has proved a moving target (earlier here and here). Scott Shackford at Reason gets farther into the details than the mainstream media has done.
Relatedly, Rod Dreher writes at the American Conservative that as a social conservative who resisted gay marriage, but now considers that cause lost, he believes fellow thinkers concerned with religious liberty should look to ally with libertarians. He recommends Shackford’s recent piece in Reason (which quotes me on adoption issues) noting the organized gay movement’s ever wider split from libertarians on issues of central government power, individual liberty and free association.
- “Rightscorp’s Copyright Trolling Phone Script Tells Innocent People They Need To Give Their Computers To Police” [Mike Masnick, TechDirt]
- “‘Affordable housing’ policies have made housing less affordable” [Matt Welch, L.A. Times]
- South Mountain Creamery case: “Lawmakers Call for Return of Cash Seized From Dairy Farmers” [Tony Corvo/Heartland, quotes me, earlier on this structuring forfeiture case]
- Be prepared to explain your social media trail, like by like: “Supreme Court confirmation hearings in 2035” [Orin Kerr]
- From Eugene Volokh, what looks very much like a case against assisted suicide, embedded in a query about whether state Religious Freedom Restoration Acts (RFRAs) might cut a legal path to it [Volokh Conspiracy]
- “The complaint also indicated that the injuries could affect Reid’s ability to secure employment” after Senate exit [Roll Call on Majority Leader’s suit against exercise equipment firm over eye injury]
- Amazon responds to NYT’s “everyone cries at their desk” hatchet job on its workplace culture [Jay Carney, Medium]
The Court begins its new term each year on the first Monday in October:
- Court agrees to tackle RICO extraterritoriality [Alison Frankel/Reuters and earlier background, Washington Legal Foundation; RJR Nabisco v. European Community]
- New term shaping up as even bigger for class action law than expected [Jess Bravin, W$J, Alison Frankel in June] In addition to Tyson Foods v. Bouaphakeo (“trial by formula“) and Spokeo, Inc. v. Robins [uninjured plaintiff standing: Kevin LaCroix, more], cases include DirecTV v. Imburgia [can California court refuse to enforce arbitration clause waiving class actions?; Ronald Mann, WLF]; Campbell-Ewald v. Gomez [is class action mooted when defendant proffers full recoverable amount to named plaintiff? Ronald Mann]; and now, just granted, MHN Government Services, Inc. v. Zaborowski (“Whether California’s arbitration-only severability rule is preempted by the Federal Arbitration Act”). DirecTV is slated for oral argument Tues., Oct. 6, and Campbell-Ewald Wed., Oct. 14;
- Rating John Roberts as Chief Justice: a lot to like if you get past the overdone deference to political branches [Roger Pilon, Cato; a contrary view, Evan Bernick] “The Fatal Conceit of Chief Justice Roberts’s ‘Long Game'” [Josh Blackman]
- Why the Little Sisters of the Poor have a better religious liberty case than Kim Davis [Noah Feldman, Cato amicus and Josh Blackman podcast]
- Did 2012 Congressional enactment on frozen Iran assets and terrorism claimants unconstitutionally direct courts how to decide pending litigation? Court grants cert [Bank Markazi v. Peterson; Lyle Denniston]
- Symposium on teacher-dues First Amendment case Friedrichs v. California Teachers Association with Deborah LaFetra, David Rifkin/Andrew Grossman, and others [SCOTUSblog] “If unions lose agency fees, what next?” [Joanne Jacobs]
- A regulatory taking? PLF seeks certiorari on California Supreme Court decision upholding San Jose “inclusionary zoning” rules [Pacific Legal Foundation, more; Scott Beyer]
- Plus: “Supreme Court Justices Get More Liberal As They Get Older” [Oliver Roeder/Five Thirty-Eight, with charts]
- On California Gov. Jerry Brown’s desk: “Bill punishes cities that have transparent labor process” [Steven Greenhut, San Diego Union-Tribune]
- “Jeweler tries to sue anonymous woman who left 1-star Yelp review” [Joe Mullin, ArsTechnica]
- Sen. Mike Lee (R-Utah) has put out a new draft of First Amendment Defense Act (FADA) minus some provisions that I and others had sharply criticized. Does it fix enough? [draft; Lee letter in NYT; National Review editors, arguing on behalf of new draft]
- Local ordinances deeming properties a nuisance if they get frequent police calls pressure landlords to evict domestic violence victims [Jessica Mason Pieklo, RH Reality Check on ACLU lawsuit against city of Surprise, Arizona]
- Wisconsin: “This is a slippery slope when the government starts telling parents whether or not their teenagers can get a sun tan” [AP/Dubuque, Ia., Telegraph Herald]
- “Chinese Nail Salon Owners: ‘Shame on You New York Times!'” [Jim Epstein, Reason, earlier]
- And still she won’t resign: “Pennsylvania Supreme Court suspends Attorney General Kane’s law license” [Pittsburgh Tribune-Review, earlier]
A Muslim flight attendant has filed an EEOC complaint against ExpressJet; among her allegations are that the company has not adequately accommodated her desire not to serve alcohol to patrons, even though she says an arrangement under which she handed off that task to colleagues had previously proved workable [CBS Detroit] Eugene Volokh has a lengthy explainer on workplace religious accommodation, and argues that Kim Davis would have had a more colorable legal case had her lawyers filed under Kentucky’s state Religious Freedom Restoration Act (RFRA). And at Cato’s Constitution Day on September 17 I’ll be discussing my forthcoming piece on EEOC v. Abercrombie & Fitch, the hijab-accommodation case.
- Can Uber survive California law? [Brian Doherty on ruling by state administrative law judge over shortcomings in accessibility; Kristian Stout/Truth on the Market on employee classification and compensation class action] The California Labor Commission’s worker-classification ruling has already killed cleaning-services startup Homejoy [Re/Code via @andrewmgrossman] Plus: Uber communicates satirically with its NYC customers in its battle with Mayor Bill de Blasio [Issie Lapowsky, Wired; related, Josh Greenman; and a new study of Los Angeles users finds Uber X twice as fast and half as expensive as taxis (Mark Kleiman)]
- Needed: RFRA for the prepared-foods aisle? “The Trans-Fat Ban Deals A Blow To Kosher Keepers” [Bethany Mandel, Federalist] Consumption of trans fats has already dropped by 85 percent, and “government doesn’t always know best” [me, Arizona PBS]
- “The U.S. Attorney’s Office might has well have a macro that generates gag orders” [Ken at Popehat on Reason subpoena, earlier here, etc.]
- SCOTUS struck down Ohio’s law banning false campaign speech, Massachusetts’s should fall next [Ilya Shapiro and Gabriel Latner, Cato]
- Roger Pilon on church, gays, and “simple idea that people are free to associate or not as they wish” [now un-gated, Cato/WSJ; related, Ilya Shapiro/Washington Times] More on EEOC’s ENDA-by-fiat attempt [Kent Hoover/Business Journals, Nicandro Iannacci, National Constitution Center/Yahoo (thanks for quoting in both cases); Laura Maechtlen and Sam Schwartz-Fenwick, Seyfarth Shaw; and a Washington Blade interview with EEOC member Chai Feldblum, who supported the ruling]
- More reactions to HUD’s ambitious local-neighborhood-diversity scheme, “Affirmatively Furthering Fair Housing” [Hans Bader, Michael Barone, earlier]
- “Star Of Viral Catcalling Video Is Reportedly Suing For Compensation” [Emma Whitford, Gothamist]
“Printing business has First Amendment and RFRA right to refuse to print gay pride festival T-shirts” [Eugene Volokh] The Lexington Human Rights Commission had ordered employee training for a t-shirt printer that had objected to printing messages it disagreed with, but a Kentucky trial court judge threw out the order citing both the First Amendment to the U.S. Constitution and Kentucky’s version of the Religious Freedom Restoration Act, here applicable to a corporation as defendant since it was an incorporated business that had been the target of the discrimination complaint. Compare the bake-my-cake cases, which have generally come out the other way. And see in the U.K., “Patrick Stewart backs bakery after ‘gay cake’ court battle”: Independent, Telegraph, Katherine Mangu-Ward/Reason.
The unsuccessful attack on an exhibition of Mohammed cartoons in Garland, Texas, near Dallas, is the most recent attempted mass murder on American soil endeavoring to silence expression bothersome to radical Islamists; it is unlikely to be the last. Some thoughts assembled from Twitter:
— Walter Olson (@walterolson) May 4, 2015
The would-be terrorists in Garland fell for one of the classic blunders: Never assume that you’ve outgunned an art show in Texas.
— Daniel Foster (@DanFosterType) May 4, 2015
One early, ill-considered reaction from the legacy media:
— Walter Olson (@walterolson) May 4, 2015
— Walter Olson (@walterolson) May 4, 2015
But the legacy media coverage didn’t necessarily improve after a day for reporting and reflection:
— Walter Olson (@walterolson) May 4, 2015
— Tom Garrett (@TheAxisOfEgo) May 4, 2015
As commentators have pointed out, the narrow “fighting words” exception in today’s First Amendment law is generally reserved for (at most) face-to-face insults likely to provoke an on-the-spot brawl, not to derogatory speech more generally:
Calling controversial speech "fighting words" means any speech may be banned if people threaten violence. See http://t.co/7Hs3nT8GXP
— Ari Armstrong (@ariarmstrong) May 4, 2015
not hecklers veto, but murderer's veto. is this how hard-won rights over the enlightenment end? https://t.co/5RiRyDJTM6
— Razib Khan (@razibkhan) May 4, 2015
Old: "I'm all for property rights, but…" New: "I'm all for free speech rights, but.." Next: "I'm all for no soldiers in your home, but…"
— Kevin W. Glass (@KevinWGlass) May 4, 2015
Echoes of the PEN awards controversy going on at the same time:
— David Loy (@DavidLoySD) May 4, 2015
On which memorably, also, Nick Cohen in the Spectator.
— Walter Olson (@walterolson) May 5, 2015
More: Ken White skewers that awful McClatchy piece with its misunderstandings about “fighting words.” And don’t miss Michael Moynihan on those who would “make a bold stand against the nonexistent racism of 12 dead journalists by refusing to clap for the one who got away,” or related and very good Caleb Crain.