1st Amendment Thread

[de officiis]

Slate weighs in on this Packingham case.

http://www.slate.com/articles/news_and_ ... ge_of.html

Some legal commentators were saying that the Supreme Court was hostile to the government's position at oral argument. Of course, this is a bit like reading tea leaves, but it will be interesting to see how they fall out. It does seem pretty harsh, although I do understand the desire to keep pedophiles off social networks.

[de officiis]

New Mexico student loses free speech appeal over anti-lesbian essay

Jonathan Stempel - Reuters - 3/28/17

A former University of New Mexico student failed to persuade a federal appeals court that the school violated her free speech rights by rejecting an essay containing anti-lesbian remarks that she had written for a film class.

The 10th U.S. Circuit Court of Appeals on Tuesday said the university had legitimate pedagogical concerns when its professors refused to grade Monica Pompeo's critique of a film about a lesbian romance and suggested that she rewrite it, prompting her withdrawal from the class in the spring of 2012.

Pompeo had written that the 1985 film, "Desert Hearts," could be viewed as "entirely perverse in its desire and attempt to reverse the natural roles of man and woman in addition to championing the barren wombs of these women."

. . . . Circuit Judge Carlos Lucero said Pompeo did not have an unfettered right to use language in a course assignment that professors might find offensive.

He said this meant the university and two professors who reviewed Pompeo's essay were not liable for damages for any alleged First Amendment violations.

"Teaching students to avoid inflammatory language when writing for an academic audience qualifies as a legitimate pedagogical goal," Lucero wrote. "Short of turning every classroom into a courtroom, we must entrust to educators these decisions that require judgments based on viewpoint."

"Entirely perverse" is now "inflammatory"?

[Zlaxer]

Yet if she had written a paper about how religious people are fascist she'd probably be valid Victorian......its the same thing all over society, if you don't agree with me, you're an enemy who must be destroyed.....yet another sign that the tribes of this country need to go separate ways

[de officiis]

New York's ban on surcharges for credit card use is a regulation of speech, Supreme Court says

DEBRA WEISS - 3/29/17

A law prohibiting merchants from imposing surcharges for credit card use—while allowing discounts for cash purchases—is a speech regulation that should be examined under the First Amendment, the U.S. Supreme Court ruled on Wednesday.

The Supreme Court ruled (PDF) in a challenge to a New York law by Expressions Hair Design and four other businesses. Chief Justice John G. Roberts Jr. wrote the majority opinion, joined by Justices Anthony M. Kennedy, Clarence Thomas, Ruth Bader Ginsburg and Elena Kagan. Justice Stephen G. Breyer concurred in the judgment; Justice Sonia Sotomayor also wrote a concurrence that Justice Samuel Alito joined.

... the merchants had argued the New York law violated the First Amendment by regulating how they communicate their prices. . . . .

The five businesses wanted to impose surcharges to cover transaction fees charged for credit card use that typically range from 2 to 3 percent of the purchase price. They had claimed the New York law known as Section 518 unconstitutionally regulates speech and is impermissibly vague.

The Supreme Court ruled that the law regulates speech but is not vague as applied to the challengers. The court remanded the case for a determination whether the law violates the First Amendment.

[Zlaxer]

Wtf? No seriously, wtf ?

[Zlaxer]

So can we through all contract statutes and case law out the window since they restrict how two individuals can communicate the terms of a bargin?

[de officiis]

Wtf? No seriously, wtf ?

New York General Business Law §518 provides that “[n]o seller in any sales transaction may impose a surcharge on a holder who elects to use a credit card in lieu of payment by cash, check, or similar means.” Petitioners, five New York businesses and their owners who wish to impose surcharges for credit card use, filed suit against state officials, arguing that the law violates the First Amendment by regulating how they communicate their prices, and that it is unconstitutionally vague. The District Court ruled in favor of the merchants, but the Court of Appeals vacated the judgment with instructions to dismiss. The Court of Appeals concluded that in the context of single-sticker pricing—where merchants post one price and would like to charge more to customers who pay by credit card—the law required that the sticker price be the same as the price charged to credit card users. In that context, the law regulated a relationship between two prices. Relying on this Court’s precedent holding that price regulation alone regulates conduct, not speech, the Court of Appeals concluded that §518 did not violate the First Amendment. The Court of Appeals abstained from reaching the merits of the constitutional challenge to pricing practices outside the single-sticker context.

Held:

1. This Court’s review is limited to whether §518 is unconstitutional as applied to the particular pricing scheme that, before this Court, petitioners have argued they seek to employ: a single-sticker regime, in which merchants post a cash price and an additional credit card surcharge. Pp. 5-6.

2. Section 518 prohibits the pricing regime petitioners wish to employ. Section 518 does not define “surcharge.” Relying on the term’s ordinary meaning, the Court of Appeals concluded that a merchant imposes a surcharge when he posts a single sticker price and charges a credit card user more than that sticker price. This Court “generally accord great deference to the interpretation and application of state law by the courts of appeals.” Pembaur v. Cincinnati, 475 U. S. 469, 484, n. 13, 106 S. Ct. 1292, 89 L. Ed. 2d 452. Because the interpretation of the Court of Appeals is not “clearly wrong,” Brockett v. Spokane Arcades, Inc., 472 U. S. 491, 500, n. 9, 105 S. Ct. 2794, 86 L. Ed. 2d 394, this Court follows that interpretation. Pp. 6-8.

3. Section 518 regulates speech. The Court of Appeals concluded that §518 posed no First Amendment problem because price controls regulate conduct, not speech. Section 518, however, is not like a typical price regulation, which simply regulates the amount a store can collect. The law tells merchants nothing about the amount they are allowed to collect from a cash or credit card payer. Instead, it regulates how sellers may communicate their prices. In regulating the communication of prices rather than prices themselves, §518 regulates speech.

Because the Court of Appeals concluded otherwise, it did not determine whether §518 survives First Amendment scrutiny. On remand the Court of Appeals should analyze §518 as a speech regulation. Pp. 8-10.

4. Section 518 is not vague as applied to petitioners. As explained, §518 bans the single-sticker pricing petitioners argue they wish to employ, and “a plaintiff whose speech is clearly proscribed cannot raise a successful vagueness claim,” Holder v. Humanitarian Law Project, 561 U. S. 1, 20, 130 S. Ct. 2705, 177 L. Ed. 2d 355. Pp. 10-11.

808 F. 3d 118, vacated and remanded.

https://www.supremecourt.gov/opinions/1 ... 1_g31i.pdf

[SuburbanFarmer]

We're obviously done here. America's a past-tense.

Learn to grow food.

[Speaker to Animals]

We're obviously done here. America's a past-tense.

Learn to grow food.

Yep.

[Zlaxer]

I offer a free brown mink stole to the first person to accept......just kidding fuckers, now pay me $5k since you picked the stole up off the shelf.....and don't even think about filing a complaint....its my fuckng 1rst amendment right to say what I want.