Recently in First Amendment Category

Attorney General Sessions Speaks at Georgetown

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The Washington Post carries this article about Attorney General Sessions' talk today at the school where I'm an adjunct professor, Georgetown University Law Center.  The talk was about free speech on campus.

There are a dozen different things to be said about this.  I will content myself with four.

First, Georgetown is a private university and may invite whomever it wants to appear on campus and whomever it wants to be in the audience.  In today's climate, Georgetown deserves credit for inviting Jeff Sessions (although it should scarcely be remarkable that a law school, of all places, would invite the Attorney General of the United States).

Second, there are complaints that not everyone who would have liked to be in the audience was accommodated.  Well, gosh  --  I would have liked to attend for sure, and I teach there, but I wasn't invited either.  Good for the University that it gave my potential seat to a student.  The fact that not everyone can fit in the room should be too obvious for words, but apparently it isn't.  It was, you see, all a conservative plot.

Third, the event was hosted by my friend and colleague, the brilliant libertarian leader Prof. Randy Barnett.  Randy argued the Supreme Court case against the government's prohibition of medical marijuana in Gonzales v. Raich, and thus is an opponent of Sessions on one of today's key criminal justice issues.  What a tribute to Randy that he offered a platform to a man with whom he has such a major disagreement, knowing that he would take plenty of heat for it to boot.

Fourth, some protesters brought signs saying "Hate Speech Is Not Free Speech." This is arrant nonsense, first because the AG said nothing that a rational person could characterize as hate; and second because hate speech most certainly is free speech, as these law students, before almost anyone else, surely must know.  See, e.g., the ACLU's famous defense of Nazis marching in Skokie, Illinois.

Is Antifa a Street Gang?

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David Pyrooz and James Densley assert that Antifa can be designated a street gang in this op-ed in the WSJ. They note that there are many definitions of "street gang":

Yet under any scientific or official definition, Antifa makes the grade. Gangs are groups. They have a collective identity, which includes signs, symbols and other features that distinguish the in-group from the out-group. Bloods wear red; Crips wear blue; Antifa wear black. It's obvious when Antifa members join protests, even for the untrained eye. And don't be fooled by Antifa's diffuse structure. Conventional street gangs are pretty disorganized too.
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Far-leftists in Berkeley, California demonstrated once again this weekend how strongly they resemble the fascists they claim to oppose. James Queally, Paige St. John, Benjamin Oreskes and David Zahniser have this article in the L.A. Times.

Thousands of demonstrators carrying signs with slogans like "Stand Against Hate" descended on Berkeley's Martin Luther King Jr. Civic Park on Sunday for what many hoped would be a peaceful march against bigotry and President Trump.

But it was soon punctuated by tear gas and a scattering of violent skirmishes. Some anti-fascist protesters, wearing black and with their faces covered, chased or beat Trump supporters and organizers who had scheduled and then canceled the "anti-Marxist" rally, citing concerns over safety.
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In Berkeley, the demonstration of more than 4,000 people pulled heavily from area labor unions, church groups and liberal activists -- but also scores of young people clad in all black, some carrying shields and others with bandannas pulled over their faces.

Those activists are sometimes referred to as "antifa," a name taken by anti-fascist organizations formed to oppose white nationalists. They are known for their "punch a Nazi" bent.
There are two problems with "punch a Nazi."  First, even swastika-bedecked scum are entitled to express their repugnant beliefs as long as they do so peacefully.  Second, the person punched may not actually be a Nazi.  Say one of the "antifa" crowd takes it upon himself to decide who is a "hater" and act as legislator, judge, jury, and executioner to deliver the punishment he deems appropriate for what he deems to be an offense.  How is he any better or any less of a "hater" than those he opposes?  Obviously, he isn't.

Reckless Disregard of the Truth

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Newspaper editorials are statements of opinion, but those opinions are often supported by assertions of fact.  As the saying goes, everyone is entitled to his own opinion but not his own facts.

On this blog we have often called out the New York Times editorial page for its particularly loose association with the truth.  See, e.g., this post from 2013.  NYT editorials regularly make factual assertions that seem to be pulled out of advocates' talking points.  If they do any fact-checking at all on their editorials before they print them, they are doing it exceptionally poorly.

Now Derek Hawkins reports in the WaPo that Sarah Palin has sued the NYT over false assertions of fact in an editorial.
Douglas Belkin and Alejandro Lazo report for the WSJ:

Officials at the University of California, Berkeley reversed course Thursday and announced they will allow conservative commentator Ann Coulter to speak at the school next month.

Chancellor Nicholas Dirks said the April 27 event was canceled because the school had received "very specific intelligence regarding threats that could pose a grave danger to the speaker, attendees and those who may wish to lawfully protest the event."

But after a search beyond "the usual venues" Dr. Dirks said in a statement that the school "identified an appropriate, protectable venue that is available the afternoon May 2."
I'm not a fan and won't be going to Berkeley for the event.  I called Ms. Coulter "cringe-inducing" on this blog some time back, and nothing since then has changed my view.  Even so, it is central to freedom of speech that we protect the cringe-inducing right along with the erudite and the eloquent.  I hope that U.C. Berkeley has sufficiently robust protection on hand to deal with the anti-free-speech "activists."  It is unfortunate that resources must be diverted for this purpose, but protection of freedom of speech is a priority, and the blame belongs squarely on those who would deny that freedom to people they simply disagree with.

The Limits of Free Speech

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The First Amendment to the U.S. Constitution says, "Congress shall make no law ... abridging the freedom of speech ...."  The Fourteenth Amendment is understood to extend this limitation to state legislatures.

Note the wording carefully.  It does not say "the freedom of speech" has no limits.  The freedom of speech may not be abridged, meaning reduced from what it was when the First Amendment was adopted.  "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic." Schenck v. United States, 249 U. S. 47, 52 (1919) (Holmes, J.).

Threatening people is not within "the freedom of speech."  Fourteen years ago, CJLF defended Virginia's cross-burning law as applied to a cross burned in a manner that constituted a threat to specific people, and the U.S. Supreme Court upheld it as so applied in Virginia v. Black.*

A few years later, the Virginia Legislature added a "noose law" along similar lines.   The Virginia Court of Appeals upheld the law as applied on Nov. 22 in Turner v. Commonwealth.

Flag Burning

President-elect Trump has raised the issue of criminalizing flag-burning in a tweet.  The constitutional question is closer than many might think.  In 1989, Texas v. Johnson was decided by a bare 5-4 majority.

The justices did not divide on liberal/conservative lines in that case.  "Conservative" Justice Antonin Scalia provided the fifth vote to overturn the statute.  "Liberal" Justice John Paul Stevens was in the dissent.

Should the question be considered closed as a matter of respect for precedent (stare decisis)?  Some of our friends on the left think that precedent is a ratchet.  All precedents favoring their view are sacrosanct, while any precedents they disagree with are constantly subject to reexamination.  Justice Thurgood Marshall sadly ended his tenure on the high court with one of the most hypocritical opinions I have ever seen, excoriating his colleagues for overturning a relatively minor (and, in my view, clearly wrong and unjust) Eighth Amendment precedent while Marshall himself had obstinately refused to accept a far more important (and clearly correct) Eighth Amendment precedent for 15 years.

On the merits, I think that flag burning has to be considered "protected speech" as long as we consider "speech" to extend beyond the literal meaning of the word into nonverbal expression.  Anti-flag-burning statutes target content rather than "time, place, or manner."  To authorize such statutes within a coherent body of free-speech jurisprudence, we would have to tear up far more than Johnson itself, and that is enough to let the sleeping dog lie. 

Of course, we can and should exercise our own right of free speech to denounce the flag-burning scum in the most vigorous terms, but the government cannot punish them unless they violate some other, non-expression-directed law.  Burning someone else's flag without permission is a crime.  Burning a flag at a gas station ought to be a crime, if it isn't already.

Justice Ginsburg on Kaepernick

Justice Ginsburg nails it on this one.  Teresa Welsh reports in the SacBee:

Ruth Bader Ginsburg is known for saying what she means. So no one should be surprised the Supreme Court justice shared her opinion about San Francisco 49ers quarterback Colin Kaepernick's national anthem protest in stark terms.
Sam Hananel reports for AP:

Supreme Court Chief Justice John Roberts has temporarily blocked a Senate subpoena that seeks information on how the classified advertising website Backpage.com screens ads for possible sex trafficking.

The order Tuesday came hours after Backpage CEO Carl Ferrer asked the high court to intervene, saying the case threatens the First Amendment rights of online publishers.

A federal appeals court ruled Friday that the website must respond to the subpoena within 10 days. Roberts said Backpage does not have to comply with the appeals court order until further action from the Supreme Court. He requested a response from the Senate by Friday.
The order reads in full:

IT IS ORDERED that the August 5, 2016 order of the United States District Court for the District of Columbia, in case No. 16-mc-621, is hereby stayed pending receipt of a response, due by noon Friday, September 9, 2016, and further order of the undersigned or of the Court
The individual Justice assigned to the circuit (the Chief, for DC) is authorized to stay a lower court's order, but they typically refer the application to the full Court for anything more than a brief stay.  I expect that "further order" will come early next week, and it will be from the full Court.
Wow.  You can't make this stuff up.

The DNC chair got the ax when hacked emails definitively proved what just about everyone paying attention pretty much knew -- that she was using the party apparatus to favor one primary candidate over the other.  We didn't think it warranted mention on this blog.

But who is the substitute convention opener?  It is none other than the notorious Baltimore Mayor Stephanie Rawlings-Blake, the one who said as her city was burning:

It's a very delicate balancing act because while we try to make sure that they were protected from the cars and the other things that were going on, we also gave those who wished to destroy space to do that as well, and we work very hard to keep that balance and to put ourselves in the best position to de-escalate.
She quickly blamed others for supposedly mischaracterizing her words, saying she did not mean what she plainly said.

One foolish statement would not have been so bad if she had followed up by doing everything right after that, but the City of Baltimore has not.  Closer to the opposite, and it has the crime to prove it.

If the Democratic Party wanted to make this election all about who is on the criminals' side and who is on the law-abiding people's side, with themselves being the wrong side, it could hardly have chosen a more effective face to put forward to open its convention.

And just to be very, very clear, there is no balance to be struck with free speech when a full-blown riot is in progress.   Government can constitutionally put "time, place, and manner" limits on speech to serve important interests, and peaceful protests can be postponed until peace is restored.

Amending the Bill of Rights

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The WSJ has this editorial, titled Clinton to Madison: Get Me Rewrite.

"Today, I'm announcing that in my first 30 days as President, I will propose a constitutional amendment to overturn Citizens United and give the American people--all of us--the chance to reclaim our democracy," Mrs. Clinton said in a taped speech to the Netroots Nation conference of progressives. First 30 days? Who knew the 225-year-old First Amendment was in need of such urgent revision?
Is amending the Bill of Rights fair game?  How about getting rid of the defendant's privilege not to testify in a criminal case?  Can we give it the heave-ho?  Probably not.

But those who agree with Mrs. Clinton would say her amendment does not change the real First Amendment, just a misinterpretation of it by the Supreme Court.  Fair enough.  Let's have an amendment to scrape off all the barnacles attached to the criminal law and procedure provisions of the Bill of Rights that were not included in those amendments as originally understood.

First over the side is the Fourth Amendment exclusionary rule.  Miranda is next. 

Dump that stupid rule that the prosecutor cannot comment on the defendant's failure to testify.  Have you seen the prosecutor's closing argument in the BBC series Broadchurch?  Great fun.  Don't try this at home.  Almost makes you want to move to England.  Except for the wigs.
The U.S. Supreme Court today decided the case of the bribery convictions of a former Governor of Virginia and his wife, McDonnell v. United States.

To convict the McDonnells of bribery, the Government was required to show that Governor McDonnell committed (or agreed to commit) an "official act" in exchange for the loans and gifts. The parties did not agree, however, on what counts as an "official act." The Government alleged in the indictment, and maintains on appeal, that Governor McDonnell committed at least five "official acts." Those acts included "arranging meetings" for Williams with other Virginia officials to discuss Star Scientific's product, "hosting" events for Star Scientific at the Governor's Mansion, and "contacting other government officials" concerning studies of anatabine. Supp. App. 47-48. The Government also argued more broadly that these activities constituted "official action" because they related to Virginia business development, a priority of Governor McDonnell's administration. Governor McDonnell contends that merely setting up a meeting, hosting an event, or contacting an official--without more--does not count as an "official act."
The Court agrees with McDonnell on the main point in a unanimous opinion by Chief Justice Roberts.  To hold otherwise would raise serious First Amendment concerns.

The Court rejects McDonnell's attack on the "honest services" statute as unconstitutionally vague, a holding based in part on the narrow interpretation in the previous part of the opinion.

The Court declines to address McDonnell's "insufficient evidence" claim because the parties have not yet had a chance to address it in light of the Court's clarification of the elements of the offense and therefore leaves that issue to the Court of Appeals on remand.  That is important because a reversal on incorrect jury instructions (the main point addressed in today's opinion) permits a retrial, but a reversal on insufficient evidence is effectively an acquittal and precludes retrial.
Eugene Volokh has this post at the Volokh Conspiracy on one of the most blatant violations of the First Amendment right of freedom of speech that I have ever heard of from any government agency in my lifetime, and that is saying quite a lot.

Here is my question.  Is this violation of the First Amendment so clear that the commissioners can be prosecuted for the federal crimes of conspiracy against free exercise of federal constitutional rights, 18 U.S.C. §241, or deprivation of rights under color of law, §242?
In my last post, I gave a preview (courtesy of Harvard Law Prof. Mark Tushnet) of how dreadful a Clinton-appointed Supreme Court would be.

I am unhappy to report that that's not the principal reason Sec. Clinton should be denied the keys to the White House.  The principal reason is that, as she has already made clear, she will use the awesome power to prosecute as a political tool  If that is not the road to tyranny, what is?

That's a bold proposition, sure.  I invite readers to draw any other conclusion after reading the following account by Stephen F. Hayes in the Weekly Standard.
CJLF sometimes gets involved in freedom-of-speech issues as they sometimes overlap with criminal law.  "Hand over your wallet or I will kill you," is speech.  It is also robbery.

On college campuses today, the principal threat to freedom of speech comes from the political left.  The disgraceful conduct of officials at Marquette University in the case of Professor John McAdams is described in this editorial at the WSJ.

But not everyone in academia has lost their minds.  The Standing Committee on Open Expression at Emory University has this thoughtful opinion on some recent incidents there.

Thanks for the tip to Eugene Volokh, who notes his brother is on the committee.

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