Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘First Amendment’

Martin Redish: “Commercial Speech and the Values of Free Expression”

The Supreme Court has been vigorous over the past 40 years in extending First Amendment protection to truthful commercial speech. Yet the “scholarly community has, with only rare exception, been either grudging or downright hostile to extending constitutional protection to commercial advertising. Most, although not all, scholars believe that protecting commercial speech trivializes what the First Amendment is truly about,” endangers vigorous regulation, “and risks diluting the strong protection traditionally given to more valuable areas of expression.” In this new Cato Institute policy analysis, Martin Redish of Northwestern University School of Law undertakes a defense:

…the question of protecting such speech should not be in doubt. Controversy comes from a failure to recognize how commercial speech furthers the values implicit in the First Amendment’s guarantee of free expression. To show how commercial speech advances free speech values, I adopt a “perspectives framework” for First Amendment theory. First Amendment values are appropriately viewed from four different perspectives: the speaker perspective, the listener perspective, the regulator perspective, and the rationalist perspective. Subsequently I will show how protecting commercial speech advances freedom of speech from each perspective; in contrast, rejecting or reducing constitutional protection for commercial speech contravenes the reasons each perspective values free speech.

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“Slants” band win trademark battle at high court

In a First Amendment win with many future implications — most immediately for the Washington Redskins football team — the Supreme Court has ruled that the First Amendment does not allow the Patent and Trademark Office to withhold trademark protection from a rock band because it considers its name to be possibly racially disparaging (or self-disparaging). The holding was unanimous, although the Justices divided on rationale. [Ilya Shapiro/Cato, Betsy Gomez/CBLDF, Eugene Volokh and more (“Supreme Court unanimously reaffirms: There is no ‘hate speech’ exception to the First Amendment”)] Earlier here (“Did Cato just file the most not-safe-for-work amicus brief in Supreme Court history?”), here, etc.

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“Do You Have a Constitutional Right to Follow the President on Twitter?”

Probably not, says John Samples: “the fact that designated public forums may be non-physical, coupled with Trump’s status as President of the United States, is probably not a sufficient basis to deem his Twitter account a designated public forum. The courts have generally determined that designated public forums must be owned by the government in an official capacity, or used for official government communication….In effect, Trump’s becoming president does not nationalize the private Twitter account that he used before ascending to the nation’s highest office, and will likely continue to use when his tenure in the White House ends.” [Cato] More: Eugene Volokh (citing ruling on challenge about social media accounts used by officials in Fairfax County, Va.)

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Campus climate roundup

  • This is big: Betsy DeVos appoints First Amendment advocate Adam Kissel as Deputy Assistant Secretary for higher ed programs [Inside Higher Ed]
  • “He is currently exploring restorative justice from an anti-authoritarian perspective.” [East Bay Times, Berkeleyside on wayward former Diablo Valley College faculty member]
  • “Oxford apologizes for saying that avoiding eye contact is racism, but not because the claim is mad.” [“Fabius Maximus” on BBC report]
  • “…the Michigan Political Union has since had to avoid other debate topics for fear of similar shout-downs.” [National Review]
  • Advice for academics: “Never object to a diversity policy publicly. It is no longer permitted.” [Jon Haidt, Peter Berkowitz on Duke Divinity case]
  • Things began to spin awry at Evergreen State College with plan to require “equity justification” for every faculty hire [Bret Weinstein, WSJ; Inside Higher Ed; Seattle Times editorial]

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“Ohio political commentators sue over online harassment ban”

The Ohio legislature last summer unanimously enacted, and Gov. John Kasich signed, a law prohibiting “knowingly posting text or audio statements or images on a website ‘for the purpose of abusing… or harassing another person.'” Now plaintiffs of several political stripes have joined in a legal challenge alleging that they or their organizations “‘routinely engage’ in protected speech that ‘may be considered provocative'” and that the law is so vaguely and broadly worded as to subject them to “a credible risk of prosecution.” The suit was initiated by UCLA law professor Eugene Volokh with assistance from his First Amendment Amicus Brief Clinic. [AP/WHIO]

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Free speech roundup

  • Until late night talker Stephen Colbert became a target, many people didn’t realize the FCC looks into every complaint of on-air obscenity. Time to revisit that practice? [Amy B. Wang and Callum Borchers, Washington Post; Volokh]
  • First Amendment lawyer Floyd Abrams on his new book, The Soul of the First Amendment [Cato podcast, panel discussion with Abrams, Ronald Collins, and Ilya Shapiro, Roger Pilon moderating]
  • Worth a read: promote legal liability for speech and watch it come back to bite you, time and again [Jason Harrow, Take Care Blog on purported incitement by President Trump at his rallies]
  • Irish blasphemy investigation of comedian/actor Stephen Fry, though quickly dropped, prompts major political parties in New Zealand to pledge repeal of that nation’s blasphemy law [Independent, U.K.]
  • Singing legend Joan Baez on letting the other side have its say [Facebook post]
  • On the Macron email dump shortly before the French election, Will Saletan: “All advocates of limits on campaign speech should think about this: Law-abiders can’t respond, so lawbreakers have the field to themselves.”

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Court: Kentucky print shop doesn’t have to print t-shirt it disagrees with

Freedom should mean freedom for everyone, so stop trying to use laws to force people to utter and print words in which they disbelieve:

A Kentucky appellate court on Friday ruled that the Christian owner of a printing shop in Lexington had the right to refuse to make T-shirts promoting a local gay pride festival.

[Jacob Gershman, Wall Street Journal] As Eugene Volokh notes, the “three-judge panel ruled, on a 2-1 vote, that Adamson’s actions didn’t violate the ordinance (and thus avoided having to decide whether he had a First Amendment right, under the ‘compelled speech’ doctrine, not to be forced to print messages of which he disapproved).” The majority opinion found that the ordinance did not prohibit discrimination based on “message or viewpoint”; a concurring judge also cited Kentucky’s version of RFRA, reasoning that the law as interpreted burdened the owners’ religious practice and the state had not shown it minimized burdens in the course of serving a compelling purpose.

Opinion here and earlier on the case here, here, and here. And I’m happy to report that Cato, along with UCLA law professor and First Amendment specialist Volokh, filed an amicus brief in support of this outcome (though urging it on direct First Amendment grounds). More: John Corvino at Slate, who disagrees with me on the wedding cases, but agrees that this is one of forced expression.

And much more: I’ve now written a longer piece on the case for Cato at Liberty.

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