1st Amendment Thread

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Defining Intent in 165 Characters or Less: A Call for Clarity in the Intent Standard of True Threats After Virginia v. Black

Adrienne Scheffey - 69 U. Miami L. Rev. 861 (Spring 2015)

This note focuses specifically on the need for a clear rule on the requisite level of intent required for speech to rise to the level of a true threat and therefore fall into the category of unprotected speech. While dictionaries define a threat as "an expression of an intention to inflict evil, injury, or damage," courts have been unable to settle on what this "expression of an intention" is. This note will emphasize the need for clarity in this area of free speech in light of the ease of communicating, and therefore threatening, over the Internet, specifically in the context of true threats. Furthermore, this note will assess the current strengths and weaknesses in the existing tests and will advocate for the test that appears to be best suited for digital communication.

http://lawreview.law.miami.edu/wp-conte ... heffey.pdf

A ban on sex offenders photographing children in public violates First Amendment

Eugene Volokh - The Volokh Conspiracy - Wash. Post - 9/23/15

From yesterday’s Wisconsin Court of Appeals decision in State v. Oatman, holding that a ban on sex offenders photographing children in public (without the children’s parents’ consent) is unconstitutionally overbroad (some paragraph breaks added):

Christopher Oatman appeals a judgment of conviction for eight counts of intentional photographing of a minor by a registered sex offender without consent, contrary to Wis. Stat. § 948.14…. Because § 948.14 is unconstitutionally overbroad, we … remand with directions to dismiss all such charges against Oatman….

According to the criminal complaint, Oatman photographed or video recorded multiple children playing outside his home. The complaint does not allege that any of sixteen counts involved obscenity, child pornography, or nudity. However, most of the images tended to focus on the buttocks or crotch area of the children….

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While the statute’s application to registered sex offenders is so vast as to defy full description, it would impermissibly preclude, for example, newspaper photojournalists from capturing images of children meeting with politicians, professional photographers from taking school yearbook pictures, and proud parents from photographing their child with classmates on the first day of kindergarten for sharing with grandparents…. Wis. Stat. § 948.14 “indiscriminately casts a wide net over expressive conduct protected by the First Amendment….” Thus, the statute’s infringement of protected expression is real and substantial…. Wis. Stat. § 948.14 is [thus] overbroad on its face….

https://www.washingtonpost.com/news/vol ... amendment/

Nice try, but judge rules swinger sex parties unprotected by First Amendment

Justin Wm. Moyer - 10/6/15 - Wash. Post

[F]rom 2007 to 2010, a hotel in Windsor Locks [Conn.] was allegedly the center of quite a swinging scene of … swingers, actually. The town’s Beverly Hills Suites, according to court documents, hosted loud, lurid, alcohol-fueled affairs featuring public sex, fights and, once, a hip-hop concert by renowned performer Ludacris. And now, after a long legal battle, a federal court ruled last week the sex parties are not protected by the Constitution.
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“The sexual activity the Liquor Control agents described observing in the Hotel bar on November 8, 2008 …. is not constitutionally protected speech,” [Federal Judge Michael] Shea wrote. Earlier rulings have established that being “in a state of nudity” is not an “inherently expressive condition,” and that “having sex, without more, is not expressive conduct[.]”

Yet another example of creative lawyering flushed down the tubes.

http://www.washingtonpost.com/news/morn ... dge-rules/


Floyd Abrams, “Beyond the Reach of Government”

Ronald Collins - Concurring Opinions - 10/26/15

The following remarks were delivered at Yale Law School on Saturday, October 24, 2015 on the occasion of Floyd Abrams receiving the Yale Law School Association Award of Merit.

http://concurringopinions.com/archives/ ... nment.html

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40% of Millennials OK with limiting speech offensive to minorities

Jacob Pouschter - Pew Research Center

We asked whether people believe that citizens should be able to make public statements that are offensive to minority groups, or whether the government should be able to prevent people from saying these things. Four-in-ten Millennials say the government should be able to prevent people publicly making statements that are offensive to minority groups, while 58% said such speech is OK.

Even though a larger share of Millennials favor allowing offensive speech against minorities, the 40% who oppose it is striking given that only around a quarter of Gen Xers (27%) and Boomers (24%) and roughly one-in-ten Silents (12%) say the government should be able to prevent such speech.

http://www.pewresearch.org/fact-tank/20 ... inorities/

Our future?

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Opinion: In face of terrorism, reassessing the First Amendment

Cass R. Sunstein - Harvard Law

THE INTENSIFYING focus on terrorism, and on Islamic State in particular, poses a fresh challenge to the greatest American contribution to the theory and practice of free speech: the clear and present danger test. In both the United States and Europe, it's worth asking whether that test may be ripe for reconsideration.
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...But is [the clear and present danger test] convincing as applied to the recruitment and propaganda efforts of terrorist organizations? To their efforts on social media, which can dramatically amplify the capacity of speech in one place to cause violence elsewhere at some uncertain time? What if more speech doesn't work, and the result is that dozens, hundreds, or thousands of people are killed?

True, there may be value in even the most extreme and hateful forms of speech: At the very least, people can learn what other people believe. But it's fair to ask whether that benefit might be dwarfed by the cost, if those forms of speech create a genuine risk of large numbers of deaths. Hand himself argued that his narrow definition of incitement avoids subjectivity and overreach, and that it can't be abused by the government to silence dissenters and unpopular causes.
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In free societies, it's almost always a bad idea to punish speech. But at the very least, the argument for the clear and present danger test is not quite as clear as it once was — and it might not be so well-suited to the present.

[O]ne of the milestones of American political liberty is Brandenburg v. Ohio, which is seen as the culmination of a half century's development that began with Justice Holmes's dissent in Abrams v. United States. In place of the rule that dominated the First World War sedition and espionage cases, allowing suppression of speech for its tendency and the intent behind it, Brandenburg insisted that

"the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."

See also G. Stone, Perilous Times: Free Speech in Wartime 522 (2004) ("[E]xactly fifty years after Schenck, the Supreme Court finally and unambiguously embraced the Holmes-Brandeis version of clear and present danger").

Brandenburg unmistakably insists that any limit on speech be grounded in a realistic, factual assessment of harm. This is a far cry from the Act before us now, which rests criminal prosecution for proposing transactions in expressive material on nothing more than a speaker's statement about the material itself, a statement that may disclose no more than his own belief about the subjects represented or his desire to foster belief in another. This should weigh heavily in the overbreadth balance, because "First Amendment freedoms are most in danger when the government seeks to control thought or to justify its laws for that impermissible end. The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought."

United States v. Williams, 553 U.S. 285 (2008) (citations omitted)

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Michigan Man Charged With Felony For Passing Out Leaflets On Juror Rights In Front Of Courthouse

Jonathan Turley

There is a highly disturbing criminal case out of Mecosta, Michigan where Keith Wood, 39, has been charged with a felony for obstruction of justice and misdemeanor of tampering with a jury. His felonious conduct? Passing out fliers about jury nullification rights on the sidewalk of the Mecosta County courthouse. The fliers from the Fully Informed Jury Association describe juror rights that some complain are omitted by judges and prosecutors in explaining jury service before trial.
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Many courts have rules against lawyers arguing for jury nullification. The case law in this area is sketchy. There is no question that jury nullification has long been recognized as a historical element of the jury system. Indeed, in 1895 in Sparf v. United States, Justice John Marshall Harlan, wrote a 5-4 opinion saying that a trial judge has no responsibility to inform the jury of the right to nullify laws. It was a controversial decision since courts have recognized the existence of this right while penalizing anyone who tells the jury about it. . . .

Putting aside the accuracy of such fliers (which I have not reviewed), this would seem to be an exercise of free speech by a citizen opposing what he views as governmental injustice. Now, after posting an absurdly high bond of $150,000, he is facing a five-year felony with up to $10,000 in fines, and attempting to influence jurors is a one-year misdemeanor with fines up to $1,000.

http://jonathanturley.org/2015/12/02/mi ... ourthouse/

Wood's attorney, David Kallman, said the incident is "outrageous." Kallman said his client had no case at the court, knew of no cases and no jury had been seated at the time he was handing out the fliers.

- http://www.beaumontenterprise.com/news/ ... 669426.php

http://player.ooyala.com/iframe.html#ec ... %3Fp%3D-50

Jury tampering? What jury?

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Removal of Confederate monuments violates free-speech right to preserve history, suit says

12/21/15 - Debra Weiss - ABA Journal

Several historic preservation groups have filed a federal lawsuit challenging a decision to remove four Confederate monuments in New Orleans.

The suit (PDF) was filed hours after the city council voted 6-1 to remove the statues on Thursday . . . . The complaint cites alleged violation of federal and local laws, as well as the federal and Louisiana constitutions.

Among the monuments slated for removal and storage are statues of Confederate Gens. Robert E. Lee[,] P.G.T. Beauregard and . . . Jefferson Davis.

The suit claims removal of the monuments violates the plaintiffs’ First Amendment right to free expression, “which they exercise by maintaining and preserving the historic character and nature of the city of New Orleans, including their monuments.”
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A hearing on the plaintiff’s motion will be heard on Jan. 14, the Times Picayune reported in a follow-up article. Mayor Landrieu has agreed not to remove the monuments before that hearing.

http://www.abajournal.com/news/article/ ... =most_read

Sounds like a bit of a stretch to me...

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Speech and the Truth-Seeking Value

Brian C. Murchison - 39 Colum. J.L. & Arts 55 (Fall 2015)

Courts in First Amendment cases long have invoked the truth-seeking value of speech, but they rarely probe its meaning or significance, and some ignore it altogether. As new cases implicate questions of truth and falsity, thorough assessment of the value is needed. This Article fills the gap by making three claims. First, interest in truth-seeking has resurfaced in journalism, politics, philosophy, and fiction, converging on a concept of provisional or "functional" truth. Second, the appeal of functional truth for the law may be that it clarifies thinking about a range of human priorities - survival, progress, and character - without insisting on truth in an absolute or transcendent sense. Third, the law's current treatment of truth-seeking in First Amendment cases turns on whether a case implicates the truth of the past, present, or future. Cases about past truth involve its knowability; cases about present truth involve its hiddenness; and cases about future truth involve its falsification. Because judicial treatment of truth-seeking in each of these groupings is underdeveloped, legal thought can benefit from literary works by three major novelists: Paul Scott, author of Staying On; Kazuo Ishiguro, author of Never Let Me Go; and Ian McEwan, author of Atonement. Each of these works clarifies an important aspect of the truth-seeking value of expressive freedoms. The Article concludes by considering the value's limitations, focusing on the complex setting of campaign finance.

http://scholarlycommons.law.wlu.edu/wlufac/495/

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ON THE DISTINCTION BETWEEN SPEECH AND ACTION

Frederick Schauer - 65 Emory L.J. 427 (2015)

Abstract:

The distinction between speech and action lies at the foundation of any individualistic, self-expressive, or autonomy-based account of freedom of speech, and very possibly at the foundation of the very idea of free speech itself. But a close examination of the distinction reveals that the justification for treating speech differently from action, or, more precisely, for treating speech differently from non-speech action, is far less sound than is commonly supposed. In particular, neither the principle of autonomy nor the principle of freedom of thought can explain why speech or even thoughts whose consequences are equivalent to those of other actions are entitled to some special or differential immunity from state control. The absence of a sound justification for such differentiation casts doubt on both autonomy and freedom of thought justifications for a free speech principle, and may even, although less plainly, challenge the fundamental basis for any form of a free speech principle.

http://papers.ssrn.com/sol3/papers.cfm? ... id=2514453

Egads.

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"THREATENING" SPEECH: THE THIN LINE BETWEEN IMPLICIT THREATS, SOLICITATION, AND ADVOCACY OF CRIME

Marc Rohr - 13 Rutgers J.L. & Pub. Pol'y 150 (Fall 2015)

Consider the following hypothetical Internet postings: (1) "I'm going to kill you, Judge X!" (2) "You deserve to die, Judge X! You'd better be careful--I know where to find you!" (3) "Judge X should be shot!" (4) "I urge the next patriot who has the chance to shoot and kill Judge X, without further delay!" (5) "Judge X deserves to die. Here are his home and office addresses." (6) "I will pay $ 10,000 to anyone who takes action leading to the assassination of Judge X."
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hould there be any difference in how, constitutionally, these statements are treated? I argue, in this article, that there should not be. That argument requires, inter alia, a reconsideration of the Brandenburg test, which--at least in theory--protects some speech that is just as "threatening" to its target as a "true threat." The argument for treating all "threatening" speech consistently will, in addition, have the beneficial effect of denying First Amendment protection to speech such as statement (5), supra, without having to distort the meaning of language by labeling such a statement as an implied "threat."

http://www.rutgerspolicyjournal.org/sit ... 20Rohr.pdf

ISLAMIC TERRORISM: THE LEGAL IMPACT ON THE FREEDOM OF RELIGION IN THE UNITED STATES AND EUROPE

Antonios Kouroutakis - 34 B.U. Int'l L.J. 113 (Spring 2016)

Abstract:

This Article aims to compare the impact of Islamic terrorism after the September 11 attacks on the approaches of the United States and Europe to their laws governing freedom of religion - in particular, focusing on the rights of Muslims in these regions. Looking to a number of post-September 11 cases in the U.S. federal and state courts and the European Court of Human Rights, this Article argues that despite the limitations on Muslims' religious freedoms and the demonstrated favoritism towards existing religious majorities, the post-September 11 cases in the U.S. and in Europe have been largely consistent with the principles and holdings of pre-September 11 precedents. The consistent treatment of Muslims' religious rights post-September 11 may be attributed to a number of factors: the nature of the limitations, namely in exemption cases; the courts' renewed belief that a person's religion does not reflect disloyalty to the country in discrimination cases; the courts' recognition of its self-restraining role in policymaking regarding antiterrorism; or the European doctrine of the "margin of appreciation." Nevertheless, the antiterrorism approaches of the U.S. and EU seem to be more manifest in the policies governing immigration and national security. With the rise of Islamic terrorism, particularly with Al Qaeda and the Islamic State of Iraq and Syria ("ISIS"), security issues have become a priority for the U.S. and EU. The extent to which such antiterrorism policies have been ultra vires and have disproportionally affected Muslim citizens and immigrants is still under scrutiny.

http://papers.ssrn.com/sol3/papers.cfm? ... id=2608898


BALANCING FREE SPEECH

Alexander Tsesis - 96 B.U.L. Rev. 1 (Jan. 2016)

Abstract:

This article develops a theory for balancing free speech against other express and implied constitutional, statutory, and doctrinal values. It posits that free speech considerations should be connected to the underlying purpose of constitutional governance. When deciding difficult cases involving competing rights, judges should examine (1) whether unencumbered expression is likely to cause constitutional, statutory, or common law harms; (2) whether the restricted expression has been historically or traditionally protected; (3) whether a government policy designed to benefit the general welfare weighs in favor of the regulation; (4) the fit between the disputed speech regulation and the public end; and (5) whether some less restrictive alternative exists for achieving it.

Recent Roberts Court free speech jurisprudence has gone in the opposite direction, becoming increasingly formalistic. Cases dealing with violent video games, cruelty to animals, aggregation of campaign financing, and lies about military achievements have applied a categorical approach that is inadequately contextual. The recently formalized categorical test undervalues important normative considerations and a variety of free speech doctrines.

On the normative side, free speech is not a separate value but one that fits within a sophisticated structure of constitutional law. After developing an ethical theory about the value of speech to representative democracy and discussing it in the context of several balancing doctrines, this article applies the framework to campaign financing legislation and copyright doctrine.

http://www.bu.edu/bulawreview/files/2016/03/TSESIS.pdf


The State of Religious Liberty in Courts

6/22/16 - Douglas Laycock - Cato Institute

http://www.cato.org/multimedia/cato-dai ... rty-courts


THE STRUCTURE OF MODERN FREE SPEECH DOCTRINE: STRICT SCRUTINY, INTERMEDIATE REVIEW, AND "REASONABLENESS" BALANCING

R. Randall Kelso - 8 Elon L. Rev. 291 (2016)

Abstract:

The structure of modern First Amendment free speech doctrine has evolved consistent with the more formalized structure of doctrine under modern Equal Protection and Due Process review. This involves more explicit use of strict scrutiny, intermediate review, “reasonableness” balancing, and minimum rationality review. As discussed in Part II of this article, for regulations of free speech in a public forum or on individual private property, the Court uses strict scrutiny for content-based regulations and intermediate review for content-neutral regulations. As discussed in Part III, for regulations of speech in a government-owned non-public forum, or speech supported by government grants or subsidies, the Court uses strict scrutiny for viewpoint discrimination, and “reasonableness” balancing for subject-matter and content-neutral regulations.

In some cases, certain kinds of speech do not trigger free speech protection at all. As discussed in Part IV, this includes cases of pure government speech or regulations of alleged symbolic speech that is viewed by the Court as involving conduct only. Other kinds of speech, like advocacy of illegal conduct, fighting words, or obscenity, get limited free speech protection: strict scrutiny for viewpoint discrimination, but otherwise no further free speech review, as discussed in Part V. When free speech principles do not apply, there is only then other kinds of constitutional review, such as minimum rationality review under the Due Process and Equal Protection Clauses for social or economic regulations not involving fundamental rights.

In addition to these categories of speech, content-based regulations of certain kind of speech in a public forum trigger less than normal strict scrutiny review. As discussed in Part VI, this can involve regulations of commercial speech, speech by government employees on matters of public concern, or alleged tortious speech, such as defamation or invasion of privacy, among others. Special First Amendment free speech doctrines for cases of prior restraints, injunctions, vagueness, substantial overbreadth, and other such matters are discussed in Part VII.

http://papers.ssrn.com/sol3/papers.cfm? ... id=2668321


STATE OF THE FIRST AMENDMENT

The State of the First Amendment survey, conducted by the Newseum Institute’s First Amendment Center, tests Americans’ knowledge of their core freedoms and samples their opinions on First Amendment issues of the day.

The results of this year’s survey show most Americans favor free speech, even over speech that offends, and support religious liberty, even in the face of terrorism. However, 39 percent of Americans could not name a single First Amendment freedom: religion, speech, press, assembly or petition.

The annual survey, which began in 1997 and this year was conducted in late May, showed that 86 percent of those responding in the national survey favored “protecting speech,” while just 10 percent favored limits aimed at “protecting people from hearing things that offend them.”

There also was strong support for free expression on college campuses: 57 percent said college students should be able to speak freely. The results dropped to 35 percent for students in high school.

Also, a follow-up survey done after the June 12 mass shooting in Orlando showed support for First Amendment protection for all religious faiths, regardless of how extreme or fringe the survey respondents might consider the beliefs of those faiths, actually increased, despite anti-Muslim rhetoric and reports of an ISIS connection that followed the worst mass shooting in U.S. history.

http://www.newseuminstitute.org/first-a ... amendment/

Nice to see that despite apparently widespread ignorance of what the first amendment protects, the creeping anti-speech movement doesn't seem to be taking hold just yet.

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Gags as Guidance: Expanding Notice of National Security Letter Investigations to Targets and the Public

Rebecca Wexler - 31 Berkeley Tech. L. J. 325 (2016)

Abstract:

National Security Letters (NSLs) are administrative subpoenas that the FBI uses to demand information from Internet service providers without prior judicial approval. They almost always include nondisclosure orders, commonly called “gags,” which prohibit the recipient from discussing the letter’s contents or even its mere existence. Courts and commentators have expressed concern that these gags may be overbroad prior restraints that violate the First Amendment and shroud government surveillance in undue secrecy. . . .

This Note considers the related rights of NSL targets. It argues that the FBI should provide notice of NSL investigations to targets and the public once government interests in secrecy abate. Specifically, once a nondisclosure order is lifted, thereby authorizing the recipient of the NSL to reveal any information about it that she desires, the government should disclose that same information. Enhancing transparency about government surveillance in this manner would not risk harm or cause undue administrative burden. It would harmonize with longstanding, closely related domestic criminal statutes. And it would advance core principles that underlie the Fourth Amendment. Moreover, the First Amendment offers ready balancing tests that can easily and reasonably be applied to guide government notice practices.

http://papers.ssrn.com/sol3/papers.cfm? ... id=2765736