Posts Tagged ‘First Amendment’

Ontario lawyers resist mandatory promote-equality pledge

Lakehead University law faculty member Ryan Alford has filed a challenge to the new Ontario bar rule requiring all lawyers to prepare and submit personal “Statement of Principles” avowing their support for equality, diversity, and inclusion. The rules have drawn fire across Canada as compelled speech, but the bar association turned down a request that individual lawyers be allowed exemptions if they believe the requirement violates their conscience. I’ve got a write-up at Cato at Liberty noting the parallels with Model Rule 8.4 (g), adopted by the ABA in 2016, which makes a vaguely defined category of discriminatory conduct, including speech, the subject of discipline as “professional misconduct,” and which Texas Attorney General Ken Paxton warns would be unconstitutional if adopted into state regulation. I write:

The “Test Acts” were a series of enactments of England that excluded from public office and penalized in other ways those who would not swear allegiance to the prevailing religious tenets of the day. There is no good reason to bring back their principles.

Full piece here. More: Scott Greenfield.

Filed under: bar associations, Canada, First Amendment, free speech in Canada, legal profession

Climate change suit roundup

Biggest recruit yet for climate recoupment suits: NYC Mayor Bill De Blasio sues blaming five oil companies for Superstorm Sandy [Seth Barron/City Journal, John Timmer/ArsTechnica, WSJ; Stephen Bainbridge on parallel divestment effort]
California cities/counties suing oil companies: climate change will be our ruin. Same cities/counties selling bonds to investors: risk? what risk? [Andrew Scurria/WSJ; John O’Brien/Forbes] Santa Cruz joins several other Bay Area counties in action [Nicholas Ibarra, Santa Cruz Sentinel]
Can’t spell “Oedipal” without “O-i-l”: Rockefeller heirs bankroll #ExxonKnew crusade against great-granddad’s company [Reeves Wiedeman, New York mag]
Same article takes disbelieving tone about possibility that state AGs’ campaign might trample anyone’s First Amendment rights [memory refresher] More about that in this Margaret (Peggy) Little and Andrew Grossman 2016 Federalist Society podcast and my Twitter thread about it;
National Association of Manufacturers launches legal initiative to push back against industrywide and attorney-general tort, nuisance, and public-recoupment suits, notably on climate and lead paint [John Siciliano, Washington Examiner; Linda Kelly, The Hill; NAM’s Manufacturing Accountability Project and its coverage of the art of “climate attribution,” the early failed Kivalina suit (more on which), origins of Global Warming Legal Action Project]
Pssst, Vice — in profiling Steve Berman you might want to be aware that a few other attorneys claim some minor role in also having “won a $200 billion settlement from tobacco companies in the 90s” [compare claims of lawyers organizing opioid suits]

Filed under: Bill de Blasio, climate change, Exxon, First Amendment, opioids, Steve Berman

“The Case for Protecting Commercial Speech”

Cato podcast: “Should commercial speech receive diminished First Amendment protection? Martin Redish of Northwestern Law School made his case at the Cato Institute’s conference on the First Amendment.” We linked Prof. Redish’s Cato Policy Analysis on the subject last summer.

Filed under: advertising, First Amendment

“This can’t possibly be consistent with the First Amendment”

California is prosecuting a man under state electronic-harassment law for posting five insults on an Islamic Center’s Facebook page [Eugene Volokh] A court filing by California Attorney General Xavier Becerra denies that the insults are protected speech or that the law is unconstitutional as applied. UCLA First Amendment expert Eugene Volokh writes, of California’s logic defending the prosecution: “This can’t possibly be consistent with the First Amendment.”

Related: New Jersey Supreme Court adopts narrow reading of criminal harassment statute so as to avoid covering repeated offensive speech which, though intended to annoy, does not invade privacy or put target in reasonable fear as to safety or security.

Filed under: attorneys general, California, First Amendment, hate speech

Update: Oregon admits error in traffic engineer case

As reported in April, the state of Oregon fined Mats Järlström of Beaverton $500 for supposedly practicing engineering without a license after he sent a letter to state officials challenging traffic camera practices, including various calculations, and mentioning his background as an electrical engineer. Now the state has admitted that it erred and violated his constitutional rights, and refunded his fine. [Reese Counts, AutoBlog]

Filed under: First Amendment, occupational licensure, Oregon, red light cameras

High Court debates wedding cakes and forced expression

“On the Left, some pine for a hard-line opinion that claims of religious liberty or free speech can never, ever provide an excuse for discrimination. But it’s not just the Alitos and Clarence Thomases who would oppose that outcome. All four liberal justices yesterday gave indications that even if they would not draw the line on compelled speech *here*, they would draw it *somewhere*.” My take on yesterday’s oral argument in Masterpiece Cakeshop v. Colorado Civil Rights Commission is up at the New York Daily News.

The principles of free contract and association and the wrongness of compelled expression and participation will endure whether or not SCOTUS sees its way clear to recognizing them in this case. Earlier; Roger Pilon (“If there is intolerance here, it is from those who would force a man to choose between his religious beliefs and his livelihood”); Ilya Shapiro; Cato’s brief; Erica Goldberg. And I’m quoted in Brandon Ambrosino’s Washington Post coverage of the case (“the lasting influence is not primarily which side wins, but where to draw the line between what is and is not expression”) and by Chris Johnson in the Washington Blade (““Neither side [on the Court] wants to inflict a culture war on the country; they’re trying to work out something without culture war.”)

Filed under: discrimination law, First Amendment, sexual orientation, Supreme Court

Google de-ranking and Washington pressure

After Sen. Dianne Feinstein of California pressured its general counsel at a hearing, Google de-ranked the Russian state media enterprise RT in its search results. As a private company, Google would have been within its rights to arrive at such a decision for reasons of its own. But for it to do so in response to government pressure, as appears to have happened here, poses very real First Amendment problems [John Samples, Cato]

Filed under: First Amendment, Google, Russia, search engines

Free speech roundup

SCOTUS grants certiorari in three First Amendment cases, bringing term’s total to four so far: National Institute of Family & Life Advocates v. Becerra (challenge to California law requiring “crisis pregnancy centers” to convey state-prescribed messages), Lozman v. Riviera Beach (scope of First Amendment claims for retaliatory arrest), Minnesota Voters Alliance v. Mansky (ban on political apparel at polls) [Ronald K.L. Coleman, Amy Howe/ SCOTUSBlog, Eugene Volokh, Howard Wasserman]
Roy Moore threatens Alabama newspapers with legal action, newspapers fire back with preserve-your-records-or-risk-sanctions warning [Erik Wemple, Washington Post]
Section 230 at risk: proposed amendment to trafficking bill doesn’t go nearly far enough to remove chilling effect on online speech [R Street coalition letter, Mike Godwin, The Hill, earlier]
“Judge Smacks Down Another Anonymous Cop’s Lawsuit Against Black Lives Matter” [Tim Cushing, TechDirt; earlier on Baton Rouge suits]
Asian-American band gets their trademark “The Slants” — fought over in a case that went to the Supreme Court — registered at last [Eugene Volokh, earlier]
“Sen. Feinstein’s Threat to ‘Do Something’ to Social Media Companies Is a Bigger Danger to Democracy Than Russia” [Scott Shackford, Reason]
…

Filed under: Alabama, Facebook, First Amendment, free speech, libel slander and defamation, social media, Supreme Court, trafficking

Cato survey: “The State of Free Speech and Tolerance in America”

I’m a bit late getting to this major survey from my colleague Emily Ekins and associates. Some highlights good and bad:

* By 71% to 28%, Americans lean toward the view that political correctness silences discussions society ought to have, rather than the view that it is a constructive way to reduce the giving of offense;

* Liberals are much more likely than conservatives to say that they feel comfortable saying things they believe without fear that others will take offense.

* By a 4-to-1 margin Americans consider hate speech morally unacceptable, while by (only) a 3-to-2 margin they do not want the government to ban it.

* “47% of Republicans favor bans on building new mosques,” notwithstanding the First Amendment’s protection of free exercise of religion.

* “51% of Democrats support a law that requires Americans use transgender people’s preferred gender pronouns,” also notwithstanding the First Amendment.

* Upwards of 80% of liberals deem it “hateful or offensive” to state that illegal immigrants should be deported or that women should not serve in military combat, with 36% and 47% of conservatives agreeing respectively. “39% of conservatives believe it’s hate speech to say the police are racist, only 17% of liberals agree.”

And much more: on college speaker invitations, microaggressions, whether executives should be fired over controversial views, media bias, forced cake-baking, and the ease of being friends across partisan lines, among many other topics.

Filed under: colleges and universities, First Amendment, free speech, hate speech, political correctness, religious liberty, transgender

Dividing the cake: high court briefs show First Amendment split

Eugene Volokh and the Cato Institute amicus program hardly ever take opposite sides of a First Amendment case, but it’s happening in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. At issue is whether the concept of expression extends to cake decoration, and if so how far. (Only cakes bearing custom/unique messages or symbols?) It’s not an easy line to draw. [Adam Liptak, New York Times; Eugene Volokh/Dale Carpenter brief for American Unity Fund; Cato brief]

SCOTUSBlog has a symposium on Masterpiece Cakeshop. The exact couching of the facts — was Phillips being asked to create a cake or design one? — could be important to the outcome [Ronald K.L. Collins] There is a Cake Artists brief. [Althouse]

While on another note, “Christian Cake Bakers and Gay Coffee Shop Owners: Why Freedom of Association Is for Everybody” [Jonathan Rauch, National Affairs; Scott Shackford, Reason] Earlier here, here, etc.

Filed under: First Amendment, sexual orientation, Supreme Court