1st Amendment Thread

[doc_loliday]

Youtuber Convicted For “Offensive” Joke Video, Faces Prison

Mark Meechan created a satirical video to annoy his girlfriend in which he trained his pug called Buddha to raise its paw when he said the words “Sieg Heil”.

That's hilarious. He should post around here. You know, when he gets out of jail.

[de officiis]

[Fife]

Why Rely on the Fourth Amendment To Do the Work of the First?

Alex Abdo - 127 YALE L.J. F. 444 (2017)

Government surveillance implicates the freedom of speech as well as the right to privacy, and yet our courts usually evaluate the lawfulness of government surveillance solely through the lens of the Fourth Amendment rather than the First. Is that approach defensible?

This term in Carpenter v. United States, for example, the Supreme Court will consider whether the warrantless and long-term collection of an individual’s “cell site location information,” revealing the movements and locations of the user, violates the Fourth Amendment.1 But the case has clear implications for First Amendment freedoms, too—particularly the ability to express dissent. Dissent’s fragile lifecycle—from formulation to ferment—requires privacy and often confidential association to flourish. Warrantless location tracking threatens these conditions, exposing to the government both the participants that initiate and the private places that incubate dissent. And yet the legal fight in Carpenter and many other surveillance cases is taking place almost entirely on Fourth Amendment grounds.

This trend is problematic because the Fourth Amendment is not up to the task of safeguarding dissent from the threat of new technology. As explored below, the Fourth Amendment differs from the First substantially in both its coverage and the strength of its protections. First, Fourth Amendment doctrine addresses invasions of privacy, not speech, and has been held to ignore a whole class of surveillance—the collection of third-party records—with significant implications for expression. Second, unlike the First Amendment, the Fourth Amendment is often blind to the cumulative effect of invasions of privacy that are small in isolation but substantial in combination. Third, and relatedly, the Fourth Amendment tends to focus narrowly on individual harms, not collective or societal ones. Fourth, even when it does apply, the Fourth Amendment offers much weaker protection than does the First, which requires a heightened government interest and means narrowly tailored to that interest. Finally, Fourth Amendment doctrine has been developed largely in the context of criminal prosecutions, in which both the claimants and the relief available tend to generate judicial antipathy.

In other words, we should not expect the Fourth Amendment to pull double constitutional duty, and yet courts routinely act as though it can. The result is that First Amendment freedoms are often at the mercy of a Fourth Amendment doctrine not designed to protect them. The time may have come to fully disentangle the two legal regimes to more fully recognize, as one court has said, that “the First Amendment requires a different analysis, applying different legal standards,” than the Fourth.2

This Essay sketches out that argument. Part I describes the state of surveillance in the United States and its effect on dissent. Part II argues that we should not expect the Fourth Amendment to protect dissent and other First Amendment freedoms against the threat of modern surveillance. And Part III briefly describes how a First Amendment surveillance doctrine might differ from the current Fourth Amendment framework.

Interesting idea, but legally it's a bit of a long shot. Notably, he does not cite a single case where the first amendment has been successfully applied to strike down a government surveillance practice or law.

The Supreme Court’s Opportunity to Legalize Privacy

Drawing upon a property and contract-based conception of privacy, I’ve argued that the doctrine of illegal contract makes the third-party doctrine, as originally conceived, superfluous. I hope others will see that this common-law doctrine provides the Court with a principled reason—one firmly rooted in our legal traditions—to limit the third-party doctrine to criminal contexts, and to stop treating the rest of us like criminals.

This approach would also be consistent with the property-based conception of the Fourth Amendment that Justice Scalia was developing in the years before his death. Justice Gorsuch, please pick up Scalia’s mantle in Carpenter and help the Court to legalize privacy. This opportunity expires soon.

Oral argument set for tomorrow I believe.

However the vote turns out, I can't wait to read Gorsuch's opinion.

Saturday afternoon reading assignment incoming.



https://www.supremecourt.gov/opinions/1 ... 2_h315.pdf

[C-Mag]

Justice Kagain on the 1st Amendment

When I was younger, I had more of the standard liberal view of civil liberties,” said Louis Michael Seidman, a law professor at Georgetown. “And I’ve gradually changed my mind about it. What I have come to see is that it’s a mistake to think of free speech as an effective means to accomplish a more just society.”
To the contrary, free speech reinforces and amplifies injustice, Catharine A. MacKinnon, a law professor at the University of Michigan, wrote in “The Free Speech Century,” a collection of essays to be published this year.

“Once a defense of the powerless, the First Amendment over the last hundred years has mainly become a weapon of the powerful,” she wrote. “Legally, what was, toward the beginning of the 20th century, a shield for radicals, artists and activists, socialists and pacifists, the excluded and the dispossessed, has become a sword for authoritarians, racists and misogynists, Nazis and Klansmen, pornographers and corporations buying elections.”

https://legalinsurrection.com/2018/07/w ... amendment/

[Okeefenokee]

Justice Kagain on the 1st Amendment

When I was younger, I had more of the standard liberal view of civil liberties,” said Louis Michael Seidman, a law professor at Georgetown. “And I’ve gradually changed my mind about it. What I have come to see is that it’s a mistake to think of free speech as an effective means to accomplish a more just society.”
To the contrary, free speech reinforces and amplifies injustice, Catharine A. MacKinnon, a law professor at the University of Michigan, wrote in “The Free Speech Century,” a collection of essays to be published this year.

“Once a defense of the powerless, the First Amendment over the last hundred years has mainly become a weapon of the powerful,” she wrote. “Legally, what was, toward the beginning of the 20th century, a shield for radicals, artists and activists, socialists and pacifists, the excluded and the dispossessed, has become a sword for authoritarians, racists and misogynists, Nazis and Klansmen, pornographers and corporations buying elections.”

https://legalinsurrection.com/2018/07/w ... amendment/

These people are nothing more than would be tyrants.

Kagan, however, has other ideas and claimed in her dissent that

• 28 states are “right to work” and do not allow fair share fees, while 22 states are not “right to work” and do allow them. The Janus ruling, she wrote, essentially makes the decision for local governments by banning them, “and it does so by weaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy.” She went so far as to call the majority “black-robed rulers overriding citizens’ choices.”
  
  “The First Amendment was meant for better things,” she concluded.

Kagan’s fantastical notion of “black-robed rulers overriding citizens’ choices” by “weaponizing the First Amendment” is puzzling. Citizens in non-right-to-work states are completely free to join a union if they so wish, and in doing so, commit to paying union dues. The only change here is that unions can no longer extort dues from non-members in any state.

Thinking these two sides can coexist indefinitely is foolish as hell.

[Fife]

How's the First Amendment making out in the Ivy League nowadays?

[Fife]

From the Dept. of Polishing brass on the Titanic:


The Volokh Conspiracy: Community College Bans Pro-Second-Amendment Banner with Picture of Rifles

Townhall (Beth Baumann) reports that the Orange Coast College chapter of the Young Americans for Freedom was barred from displaying this banner at a campus student recruitment fair. The careful reader will doubtless say, "Ah, it must be because the college is deeply committed to historical precision, and officials insist that the Amendment has only existed as an Amendment, rather than just as a proposed Amendment, since 1791 rather than 1789." Well, no: According to the Townhall report, the College objected to the banner's depicting the sillouettes of two rifles—which, college officials said, were forbidden by a college policy that bars not just firearms but any "facsimile of a firearm."

[Fife]

Meanwhile, in Texas:

San Antonio Violates the First Amendment to Punish Chick-fil-A

The San Antonio city council has voted to block Chick-fil-A from opening a store in its airport to punish it for donating to the Fellowship of Christian Athletes and the Salvation Army.

No, really. Here’s the report, from Fortune:

Don’t plan on getting a Chick-Fil-A sandwich next time you fly through San Antonio Airport.

The city’s district council approved a new concession agreement for the airport on Thursday that will bring in more local establishments and specifically bans the popular chicken sandwich chain. At issue, apparently, is the donation of money by the Chick-Fil-A to groups that have been accused of discriminating against the LGBTQ community.