Recently in First Amendment Category

Last week, we filed on behalf of the Legion of Valor of the United States and the Criminal Justice Legal Foundation an amicus brief in the Stolen Valor Act case before the Supreme Court, United States v. Alvarez, No. 11-210.  There are six other amicus briefs on our side as well, all available at the ABA's case page.

Our brief begins with an argument that the Act should be understood as prohibiting only intentional lies about military medals.  That position is in keeping with our view on the importance of a mens rea element in criminal statutes, and it also strengthens the statute against constitutional attack.

In the second part, we discuss the harm done by the fakers.  This part is relatively short to avoid excessive overlap with other briefs in the case.  We also include a short discussion of viewpoint neutrality, distinguishing R.A.V. v. St. Paul.

In Part III, we take head-on the argument that the "crush video" case, United States v. Stevens, subjects all speech to strict scrutiny, even bald-faced lies, unless it can be shoehorned into one of the specific historical categories listed in that decision.  This may turn out to be the crux of the case.

The last part is addressed to Chief Judge Kozinski's colorful opinion about how horrible it would be if the government banned every sort of personal, trivial lie.  Of course it would, but the problem there is not one of excessive intrusion on speech but of excessive intrusion into private matters, whether they be speech or conduct.  If some sort of government interest requirement is necessary for a statute banning an outright lie, okay.  It doesn't matter for this case what the threshold is, because this statute would pass any test that might be used.  The panel majority in this case conceded that the statute serves a compelling government interest, the highest standard, and another panel of the Ninth Circuit so held in a later case upholding another subdivision of the same statute.

The loony fringe caucus in Congress wants to amend the First Amendment to exclude "for-profit corporations, limited liability companies, or other private entities established for business purposes or to promote business interests" as well as ban any expenditures regarding elections by such entities.  Eugene Volokh at the eponymous blog has this post noting that this would effectively ban newspaper editorials on election issues. This blog, being funded by a nonprofit, could apparently still opine.

This op-ed in today's WSJ, with the above title, is one of those articles that is more important for who says it than for any originality in what is said.

Floyd Abrams is widely regarded as a First Amendment hero among folks who favor a broad interpretation of that enactment.  So does he think Julian Assange is a hero?  Not at all.  He finds "much to deplore."

None of this means that if WikiLeaks or Mr. Assange were brought to trial in this country that they would have no basis for claiming First Amendment protection. They would and should. Whatever the legal result, it would not absolve Mr. Assange of conduct that has put many people at great risk, or indeed, may already have cost some of them their lives.

"When delicate information is at stake, great prudence is demanded so that the information doesn't fall into the wrong hands and so that people are not hurt," the German newspaper Die Welt commented upon WikiLeaks' bulk release of unredacted State Department cables. That such self-evident language seems alien to Julian Assange and to WikiLeaks says it all.

Aleisha Orr of the Sydney Morning Herald reports:

Lawyers have spoken against the West Australian government's plan to adopt the toughest organised crime laws in the country, which could see bikies banned from associating.

Attorney General Christian Porter hopes to shatter the core of outlaw bikie gangs with the new law, which would make WA's organised crime laws the toughest in the country.

Last year's Veterans' Day post bears repeating:

Let us pause in our discussion of the meaning of justice in a free society to thank those who make a free society possible.  High-toned declarations and proclamations would be nothing but scraps of paper without the sacrifice of those who fight for freedom against the forces of totalitarianism.  Thank you, from the bottom of our hearts.

In addition, we are on a special mission this Veterans' Day.  On October 17, the Supreme Court took up the constitutionality of the Stolen Valor Act.  See prior post here.  The Ninth Circuit, true to form, held that there is a constitutional right to lie about being a decorated war hero.

Congress did not think so when it found,

"Fraudulent claims surrounding the receipt of the Medal of Honor, the distinguished-service cross, the Navy cross, the Air Force cross, the Purple Heart, and other decorations and medals awarded by the President or the Armed Forces of the United States damage the reputation and meaning of such decorations and medals."  120 Stat. 3266 (2006).

We at CJLF are presently working on an amicus brief arguing for the constitutionality of the act.  I am pleased to report that we will be joined in this brief by the Legion of Valor.

Bugler, sound charge!

Today the US Supreme Court agreed to take up the constitutionality of the Stolen Valor Act in United States v. Alvarez, No. 11-210.  Prior post, with links to earlier posts, is here.  Today's orders list is here.

Update:  Robert Barnes has this story in the WaPo.  Eugene Volokh has this post at the eponymous conspiracy.

From north of the border comes a reminder that freedom of speech is broader in the United States than nearly anywhere else, even our English common-law brethren.  Kirk Makin reports in the Globe and Mail:

In a highly charged case, the Supreme Court [of Canada] interjected repeatedly as it grappled with how to protect minorities from expressions of hate without damaging free speech - a decision that could have far-reaching implications for hate laws across the country.

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The case revolves around a 43-year-old, anti-gay proselytizer, William Whatcott, who distributed thousands of flyers in Saskatoon harshly criticizing gays and including information about homosexuality in school curricula.

South of the border, this would be an easy case.  Whatcott's intolerant flyers are not threats.  They are further from that line than Barry Black's cross-burning at a rally, which was held to be protected speech in Virginia v. Black.  [Burning a cross as a specifically targeted threat -- on the neighbor's lawn -- is not protected, the Court held in the companion case.]

Eugene Volokh at his eponymous conspiracy has this post on an astonishingly broad, and almost certainly unconstitutional, proposal on cyberbullying in New York.  He emphasizes this sentence:

Proponents of a more refined First Amendment argue that this freedom should be treated not as a right but as a privilege -- a special entitlement granted by the state on a conditional basis that can be revoked if it is ever abused or maltreated.

Yeah, right, "refined."  Always cast your proposal as the more sophisticated approach.

The government has asked the U.S. Supreme Court to review the decision of the Court of Appeals for the Ninth Circuit holding the Stolen Valor Act unconstitutional as violation of freedom of speech.  Prior posts are here, here, and here.

The case is United States v. Alvarez, No. 11-210.  SCOTUSblog's case page is here.

This is only marginally on topic, but interesting.  Texas has an entrance fee of $5 for strip joints that serve alcohol.  This has been humorously dubbed the "pole tax."  Cf. U.S. Const. Amdt. XXIV.  The Texas Supreme Court today upheld the pole tax against First Amendment challenge, reports Jim Vertuno of AP.

In People v. Lowery, S179422, decided today, the California Supreme Court considered the criminal punishment of threats post Virginia v. Black.  In doing so, it split from a recent Ninth Circuit decision, United States v. Bagdasarian.

Q:  When is a pervert not a pervert?

A:  When he says God made him do it.

That about sums it up for the defense in the notorious, and now happily over with, trial of Warren Jeffs.  Jeffs, 55, was the head of a sect (implausibly) claiming to be an offshoot of the Mormon Church.  Part of the religious "duty" incumbent on Mr. Jeffs, as church leader, was to "marry" what he referred to as "child brides."

In the language of normal people, what that means is that he picked out little girls to rape.  Today, he got a life sentence plus 20 years for raping two of them, one aged 15 and the other 12.  The story is here.

I'm going to stay far away from making any general comments about religion.  I will say that, like anything else, it can be abused and distorted.  We see this all the time in the death penalty debate, where religious hucksters like Sister Prejean cloak themselves in sanctimony to look down upon the Less Enlightened of us  --  admittedly a big majority  -- who support capital punishment.  Hey Sister, where's that ever-popular-with-liberals separation of church and state when you need it?

The distortion of religion in the Jeffs case is too blatant to need discussion, but it's not too blatant for the defense to claim that the indictment was religious "persecution:"

Jeffs claimed his religious rights were being violated. Representing himself after burning through seven high-powered attorneys, he routinely interrupted the proceedings and chose to stand silently in front of jurors for nearly half an hour during his closing arguments. He called just one defense witness, a church elder who read from Mormon scripture.

For the second time today, I have occasion to give thanks that I made my living as a thoroughly secular prosecutor.   

Europe likes to fancy itself as "ahead" of the United States in the human rights realm these days, but of course it is not.  AP reports that a German court has upheld a criminal conviction for denying the Holocaust.  This "crime" did not even happen in Germany.  A British bishop made comments on a Swedish TV station that ended up being broadcast in Germany.

Holocaust deniers are worthy of scorn and contempt.  However, criminal prosecution simply for expressing an opinion, however vile, is equally contemptible.

Much of the discussion on the Supreme Court today will likely be in the violent video game case, Brown v. Entertainment Merchants Assn., No. 09-1448.  (Gov. Moonbeam is automatically substituted as a party for the Governator.  See S.C. Rule 35.3.)

It's not really up our alley, so I won't discuss it in depth on this blog.  The split among the Justices is interesting, though.  Justice Scalia takes a straight First Amendment approach along the same lines the Supreme Court used in olden days to legalize pornography.  This is content-based regulation.  Strict scrutiny applies.  The statute fails that test (as statutes almost always do).  Justices Kennedy, Ginsburg, Sotomayor, and Kagan concur.

Justice Alito, joined by Chief Justice Roberts, concur in the judgment.  They would strike down the statute on due process grounds as too vague, leaving to another day what they see as difficult First Amendment questions regarding applying old rules to new technology.

Justice Thomas does not see the First Amendment question as difficult.  Speech to minors bypassing the parents is not within "the freedom of speech" protected by the First Amendment as originally understood.

Justice Breyer believes the statute passes strict scrutiny, and he appends a 15-page list of "peer-reviewed academic journal articles on the topic of psychological harm resulting from playing violent video games."

This should throw a wrench into the "justice agreement statistics."

The Supreme Court of New Zealand, that is.  How Appealing points us to today's decision in Morse v. The Police.  Valerie Morse was charged with disorderly conduct for burning a New Zealand flag during Anzac Day celebrations in 2007 as a protest against that country's participation in the war in Afghanistan.  The judges deliver their opinions seriatim, discussing such things as the meaning of "offensive" in the disorderly conduct statute and the need to give the statute an interpretation consistent with the New Zealand Bill of Rights Act of 1990.

However, not a single judge thought it was necessary to discuss the foreign decisions of Texas v. Johnson, 491 U.S. 397 (1989) or United States v. Eichman, 496 U.S. 310 (1990).  That is correct.  The US Supreme Court's interpretation of the First Amendment to the United States Constitution has no bearing on the legal question under consideration.  There is some discussion of Australian cases interpreting a very similar statute adopted at nearly the same time.  Under those circumstances, there is a reasonable inference they were intended to have similar meaning.