Recently in First Amendment Category

The Claremont Institute's Center for Constitutional Jurisprudence will sponsor a teleforum on Friday at 1:00 p.m. EST on three cases argued before the Supreme Court this month.  The criminal case in the group is Elonis v. United States, the Facebook threats case, to be discussed by yours truly.

Also on the case will be Prof. Anthony Caso of Chapman University (formerly with Pacific Legal Foundation) discussing the Amtrak regulatory delegation case, and Karen Harned of the National Federation of Independent Business, discussing the notice and comment requirements for an administrative agency to change its interpretative regulations.  Because of these two cases, the forum is titled, "Will The Court Rein In The Out Of Control Bureaucracy?"  Dr. John Eastman will lead the discussion.

You can register your phone number here, and they will call you, or you can point your browser here, and listen via webcast.

Elonis Teleforum Podcast

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My FedSoc Teleforum on the Elonis Facebook threats case argument yesterday is now available as a podcast.

Facebook Threats Argument

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Robert Barnes has this report in the WaPo on the oral argument in the Facebook threats case, Elonis v. United States.

As Bill noted earlier, I did a teleforum for the Federalist Society on the case.  It should be available as a podcast tomorrow.  We will post a link here then.

One thing that is clear from the argument is that counsel for Elonis abandoned the position that a subjective purpose to intimidate is constitutionally required.  The mental state argument is about what kind of knowledge is required -- knowledge that the statement would be perceived as a threat, knowledge of a grave risk it would be so perceived (i.e., recklessness), or just knowledge of what the statement said, combined with an objective determination that a reasonable person would see it as a threat.
Kent wrote about the Facebook threat case, Elonis v. United States, in this post. The case was argued before the Supreme Court this morning, and Kent will describe and analyse the argument in a Federalist Society teleforum broadcast this afternoon at 4 pm Eastern Time.  The call-in number is 888-752-3232.

Facebook Threats Argument Next Week

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Elonis v. United States, the Facebook threats case, will be argued next week.  We filed our brief last October, and I wrote this post the same day.

Amy Howe has this "plain English" post on the case at SCOTUSblog.  She noted it is unlikely that the Justices are much familiar with Facebook and wonders if that will affect the case.  It shouldn't, in my opinion.  The definition of a prohibited threat should not vary with the medium.  The fact that people rant all the time on the internet does not warrant extending First Amendment protection when rant crosses the line to threats. 

A couple of amicus briefs supporting Elonis take the position, in essence, that the routine debasement of speech in our society in media such as online posting and gangsta rap are a reason to take a more expansive view of First Amendment protection of threats.  If this downward spiral of our society has any effect at all on the decision, it should be in the other direction, in my opinion.  We have gone way too far in letting it all hang out and need to tuck some of it back in.

A good example of the ill effects of extreme disinhibition is SCOTUSblog itself.  That blog used to have comments, and I enjoyed commenting there, exchanging views with thoughtful, intelligent, informed people, many of whom disagreed with me.  But the comment section turned into a cesspool, as the comments of so many blogs do.  They tried requiring people to use their real names, and that helped but not enough.  Finally they axed the comments altogether because they dragged down the quality of the blog.  The rudeness of a few ruined the medium for those of us who wanted to exchange views at a refined level.

Today the Ninth Circuit decided Doe v. Harris, No. 13-15263.  The opinion by Judge Bybee begins:

California law has long required registered sex offenders to report identifying information, such as their address and current photograph, to law enforcement. Cal. Penal Code §§ 290.012, 290.015. The Californians Against Sexual Exploitation ("CASE") Act sought to supplement and modernize these reporting obligations by requiring sex offenders to provide "[a] list of any and all Internet identifiers established or used by the person" and "[a] list of any and all Internet service providers used by the person." Id. § 290.015(a)(4)-(5). The Act also requires registered sex offenders to send written notice to law enforcement within 24 hours of adding or changing an Internet identifier or an account with an Internet service provider ("ISP"). Id. § 290.014(b). Appellees Doe, Roe, and the nonprofit organization California Reform Sex Offender Laws filed a complaint alleging that the CASE Act infringes their freedom of speech in violation of the First Amendment. Appellees filed a motion for a preliminary injunction, which the district court granted. Kamala Harris, the Attorney General of California, and Intervenors, the proponents of the CASE Act, appeal. We hold that the district court did not abuse its discretion by enjoining the CASE Act. Accordingly, we affirm.
Suppose someone who is angry at you says he is going to hunt you down and kill you.  Suppose further that all of the circumstances of the statement are consistent with him really meaning it.  If the police go and arrest him for making criminal threats, and he says "oh, I was just kidding," is that a defense?  If the jury believes him, or if the prosecution is unable to disprove the claim beyond a reasonable doubt, does he walk?  Does the First Amendment require this result?  That is the issue before the United States Supreme Court in Elonis v. United States, No. 13-983.

Police Prudence or Hecklers' Veto?

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One of the tougher issues in First Amendment law is deciding when protected speech turns into unprotected incitement.  Police are often called upon to make that judgment.  In this case, they found incitement, moved the protesters out, and threatened them with arrest for disorderly conduct.  (No charges were actually brought in court, however).

A Sixth Circuit panel found that the district court got it right when it held for the police. On the circumstances of this case, I think the cops got it wrong, for the reasons explained by dissenting Judge Eric Clay (appointed by Bill Clinton).

To allow a menacing mob to trump peaceful (although very annoying) protesters' First Amendment rights is to allow the "heckler's veto," and that in turn will lead us to a place a free country should never go.

Sometimes, You Forget How Bad They Can Be

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But Ed Whelan of NRO's  Bench Memos reminds us:


2005--A split Ninth Circuit panel, in an opinion by notorious activist judge Stephen Reinhardt, rules in a habeas case (Musladin v. Lamarque) that under clearly established Supreme Court law a defendant on trial for murder was deprived of his right to a fair trial by an impartial jury when the trial judge permitted family members of the victim (or, as Reinhardt insists on referring to him in quotes, the "victim") to wear buttons bearing the deceased's photograph. (The panel will later substitute in a slightly different version of its opinion.)

In 2006, a mere two months after oral argument, the Supreme Court (in Carey v. Musladin) will unanimously reverse the Ninth Circuit.


How far some judges will go to re-invent the Constitution as a cudgel of callousness toward the families of murder victims is mind-bending. 

Academic Robbery

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Eugene Volokh has this post at his eponymous conspiracy on a bizarre incident at the University of California at Santa Barbara.  Dr. Mireille Miller-Young -- an associate professor with UCSB's Feminist Studies Department -- was offended by an anti-abortion demonstration with graphic images.  (CJLF takes no position on the underlying controversy, BTW.)

According to the police report,

Miller-Young said that she "just grabbed it [the sign] from this girl's hands." Asked if there had been a struggle, Miller-Young stated, "I'm stronger so I was able to take the poster."

Miller-Young said that the poster had been taken back to her office. Once in her office, a "safe space" described by Miller-Young, Miller-Young said that they were still upset by the images on the poster and had destroyed it. Miller-Young said that she was "mainly" responsible for the posters destruction because she was the only one with scissors.

The definition of robbery in California, unchanged since 1872, is "the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (Penal Code § 211.)

Miller-Young confessed to taking the property, and the "I'm stronger" statement effectively confesses the "force" element. (See 2 Witkin & Epstein, California Criminal Law, Crimes Against Property § 99.) This is not only a felony, but a "violent" one. (Penal Code § 667.5(c)(9).)

"Miller-Young said that she did not feel that what she had done was criminal."

In my view, one of the greatest problems in our society today is the extent to which our young people are being taught by persons utterly devoid of common sense. Miller-Young should be convicted of robbery. Whatever direct consequences the court may impose, the collateral consequence should be that she is fired and never teaches in this state (or hopefully any other) again.
The U.S. Supreme Court today took up a case that may be as remarkable for how it got to the high court as it is for the eventual holding.  Arkansas prisoner Gregory Holt, alias Abdul Maalik Muhammad, filed a handwritten certiorari petition on his own.  He claims the State's anti-beard policy violates the Religious Land Use and Institutionalized Persons Act (RLUIPA) and the Free Exercise Clause of the First Amendment.  The case is Holt v. Hobbs, No. 13-6827.

Back in November, the Court enjoined Ark. DoC from enforcing its policy against Holt, for the first 1/2 inch of beard, until disposition of the case.

Update:  The Court subsequently amended its grant of certiorari to narrow the Question Presented to "Whether the Arkansas Department of Correction's grooming policy violates the Religious Land Use and Institutionalized Persons Act of 2000, 42 U. S. C. §2000cc et seq., to the extent that it prohibits petitioner from growing a one-half-inch beard in accordance with his religious beliefs."

Protesting on Military Bases

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The U.S. Supreme Court decided one criminal case today, United States v. Apel.

Federal law makes it a crime to reenter a "military . . . installation" after having been ordered not to do so "by any officer or person in command." 18 U. S. C. §1382. The question presented is whether a portion of an Air Force base that contains a designated protest area and an easement for a public road qualifies as part of a "military installation."
Yes.  Unanimous.  For those keeping score, that is two unanimous reversals of the Ninth Circuit in two days.  The panel that decided this case knew it was flaky but felt it was bound by a Ninth Circuit precedent.  That's what en banc is for, your honors.  Use it to correct these decisions that are so wrong not a single justice thinks they are right.

Hate Crimes

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French prosecutors have charged a visiting 72-year-old American with "inciting hate" for supposedly comparing Croats with Nazis.

The defendant's name is Bob Dylan.  Yes, that Bob Dylan.  Inti Landauro has this story in the WSJ (subscription).

Opinions vary on hate crime laws, even among those of us who generally agree on criminal law matters.  Some think they should be abolished altogether.  Speaking strictly for myself, I think they have a place when a person is targeted for a crime of violence because of his race.  Broadly defined hate crime laws are a different matter.  As the French example shows, they slip too easily into gross violations of freedom of speech, and such laws should be given the heave-ho.

If convicted, BTW, Dylan will probably get off for a fistful of euros.

Panhandling and the First Amendment

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The U.S. Court of Appeals for the Sixth Circuit today struck down Michigan's c.1929 statute against "begging" in Speet v. Schuette, No. 12-2213.  The Supreme Court has held that various forms of solicitation are protected speech.  It has also upheld various restrictions on solicitation.

CJLF did some work in this area 20 years ago.  We filed an amicus brief in International Society of Krishna Consciousness v. Lee (1992).  The Supreme Court allowed the New York airports to forbid solicitation by the Hare Krishnas, although in a parallel case the Court struck down a prohibition against handing out literature.  The latter didn't matter, of course, as it was all really about the money.

The opinion of the Court in that case was based on a conclusion that the airport was not a public forum.  Justice Kennedy thought it was, but he thought that in-person solicitation for the immediate payment of money was not protected speech.  That was also the position of our brief.  To date, however, there still is no Supreme Court precedent on point.

Some of our friends on the other side of the aisle think it is really important to let people confront others on the street and ask for money.  They also think it is awful when people don't want to go downtown and instead go to suburban shopping malls which, as private property, can kick the bums out.  They don't seem to see any connection.

Holder Letter on the Rosen Matter

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Todd Ruger has this post at BLT on AG Holder's letter of June 19 to the House Judiciary Committee regarding his May 15 testimony and the James Rosen search warrant.  The letter is on the committee website.

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