At least the police chief in Wallingford, Ct. seems to have a grip on Civics 101 following someone’s decision to call the cops on discovering that merchandise with Nazi and Confederate insignia was for sale at a flea market [WTNH]
Posts Tagged ‘First Amendment’
Judge strikes Washington Redskins trademark
A bad decision that ignores the likely application of the First Amendment, seizing valuable intellectual property without compensation essentially because the government disapproves of its content. [Ilya Shapiro, USA Today, earlier on Redskins trademark battle, another pending case on “disparaging” trademarks and more]
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 $135,000 in emotional-distress damages for having refused to bake a cake for a lesbian couple’s commitment ceremony. Aside from the ruling’s other objectionable elements, the state labor commissioner ruled it “unlawful” for the couple to have given national media interviews in which they expressed sentiments like “we can see this becoming an issue and we have to stand firm.” Taking advantage of an exception in free speech law in which courts have found that the First Amendment does not protect declarations of future intent to engage in unlawful discrimination, the state argued – and its commissioner agreed – that the “stand firm” remark along with several similarly general comments rallying supporters were together “unlawful.”
That ought to bother anyone who cares about free speech. I’ve got a piece up at Ricochet.com, my first there, exploring the question in more detail. Check it out [cross-posted from Cato at Liberty].
Similarly today: Ken at Popehat.
Supreme Court and constitutional law roundup
- Supreme Court grants certiorari (as Cato had urged) in Friedrichs v. California Teachers Association, on First Amendment rights of individual public employees against unions, potentially major sequel to Harris v. Quinn (our coverage) and Knox v. SEIU (our coverage). More: Jason Bedrick, Cato;
- More First Amendment: On same day, high court says Texas can turn down Confederate-flag license plates but that town of Gilbert, Ariz. impermissibly took content into account in regulating roadside signs [Lyle Denniston; Eugene Volokh on Gilbert and earlier, and on license plates] Ilya Shapiro has a wrap-up of other end-of-term cases;
- Paging judicial-independence buffs: study finds Obama stands out for aggressive comments on pending SCOTUS cases [W$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]
Sen. Whitehouse urges RICO suit against climate wrongthink
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.”
P.S. Kevin Williamson notes that if the idea of criminalizing policy differences was ever something to dismiss as an unimportant fringe position, it is no longer.
“No, there’s no ‘hate speech’ exception to the First Amendment”
For those who may be new to this subject, such as New York Times headline writers and CNN’s Chris Cuomo, Eugene Volokh explains it all for you.
P.S. And this is outstanding: in “direct response” to the Charlie Hebdo attack, Norway scraps its blasphemy law [The Local Norway]
Cato brief: the value of speech that may offend
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.
Free speech roundup
- 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)]
Councilman: don’t write about me without my say-so
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.
Free speech roundup
- 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]