Recently in First Amendment Category

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.

Protesting at SCOTUS

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Well, that was quick.

Congress has long forbidden demonstrations at the Court.  In 1983 the Court held that statute unconstitutional as to the sidewalks in United States v. Grace.  The law has continued to be enforced as to the grounds.  Earlier this week, a federal district judge found it unconstitutional as to the grounds as well.  The Court swiftly reacted with this revised regulation:
Politico tells us that a US Attorney in Tennessee is "vowing to use federal civil rights statutes to clamp down on offensive and inflammatory speech about Islam."

So it's gone beyond targeting conservative groups for "special treatment" by the IRS. It's now that if you say something "offensive and inflammatory" about Muslims, the federal prosecutor is coming for you.

"This is an educational effort with civil rights laws as they play into freedom of religion and exercising freedom of religion," [US Attorney Bill] Killian said about the meeting. "This is also to inform the public what federal laws are in effect and what the consequences are."

Oh, OK, Mr. Killian.  Why don't you tell us specifically "what the consequences are?"  And don't we love DOJ's version of "an educational effort?"  Wasn't this sort of "educational effort" most recently used by the Khmer Rouge?

"If a Muslim had posted 'How to Wink at a Christian [with a target picture],' could you imagine what would have happened?" Killian asked, according to the newspaper.

Yes, I can.  Nothing.  

Didn't it used to be liberals who told us that First Amendment protections are most vital precisely when speech was offensive and inflammatory?  Yeah, well, I guess that was when Obama's minions were screaming in the streets that George Bush is Hitler.  How times have changed.

"Beyond Parody"

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The Washington Examiner has a report about Eric Holder's off-the-record meeting with several press outlets.  As I noted earlier, the meeting was designed to give reassurance that DOJ really does respect the First Amendment.  Many, probably most, of the press organizations invited declined to attend a gathering whose substance they would be unable to share with their readers and viewers.

The Examiner piece starts with the following two paragraphs, which I repeat without comment  --  not because comment is unwarranted, but because I am left speechless (emphasis in the original Examiner story):

Susan Ferrechio reports Friday [that] most news organizations boycotted on principle Attorney General Eric Holder's offer to join a press conference Thursday  in which he discussed the Obama's White House various efforts to monitor, intimidate and harass journalists. Holder's condition was that the meeting be "off the record," meaning none of the reporters would be allowed to report what was said at the meeting.

Among those who did attend was the Washington Post. Today's Post has an account of the meeting -- sort of. That is, they have a story about what the Justice Department allowed them to say about its efforts to protect press freedom. The result is just beyond parody...

Shield Laws

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The WSJ has this editorial denouncing the efforts of the trial judge in the Aurora massacre case to force a Fox News reporter to disclose her source.  Someone in law enforcement, apparently, told her about the shooter's notebook.

The First Amendment is not superior to all other constitutional rights, and there are times when the right to a free press collides with the right to a fair trial. Hard calls then have to be made, especially when a journalist has information that bears on the guilt or innocence of the accused.

Nothing like that is at issue here. Ms. Winter's role is peripheral to the case against Mr. Holmes. The court has access to the notebook and has the authority over whether to admit its contents as evidence in the trial. Her confidential information concerns only who disregarded the judge's order.

The extent of First Amendment protection in this area is fuzzy, but many states, including Colorado, have state laws that go beyond constitutional requirements.  The text of CRS § 13-90-119 follows the jump.

Criminal Blogging

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This post is critical of the government of Vietnam.  That is a criminal offense for which I could get a long prison sentence if I were in Vietnam.  Thank God I am not.  James Hookway has this article in the WSJ with contribution by Nguyen Anh Thu.

Although the Cold War is a fading memory, a substantial portion of the Earth's population still lives under communism.  We should never forget how thoroughly evil it is.

Criminal Lecturing

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Can it be a crime to give a lecture?   Has the FDA enforced the FDCA that way?  Harvey Silverglate has this op-ed in the WSJ:

Peter Gleason was a psychiatrist who devoted much of his professional life to caring for what government officials call "underserved populations." He would have been thrilled to learn that on Dec. 3 in New York, a three-judge panel of the U.S. Court of Appeals for the Second Circuit issued a ringing opinion that vindicated the conduct for which he was indicted and arrested in 2006.

Unfortunately, Gleason did not live to see this welcome reversal of the federal government's crusade against him and the promotion of Xyrem--a drug widely used by physicians, including Gleason, to treat a number of medical conditions beyond what the federal Food and Drug Administration approved it for. Hounded for years, he saw his career and finances ruined by the relentless war waged against him by FDA bureaucrats and Justice Department prosecutors. Gleason committed suicide on Feb. 7, 2011.

Silverglate neglects to mention that the panel was actually divided 2-1.  The opinion is here.  The majority's concluding paragraph reads:

Accordingly, even if speech can be used as evidence of a drug's intended use, we decline to adopt the government's construction of the FDCA's misbranding provisions to prohibit manufacturer promotion alone as it would unconstitutionally restrict free speech. We construe the misbranding provisions of the FDCA as not prohibiting and criminalizing the truthful off-label promotion of FDA-approved prescription drugs. Our conclusion is limited to FDA-approved drugs for which off-label use is not prohibited, and we do not hold, of course, that the FDA cannot regulate the marketing of prescription drugs. We conclude simply that the government cannot prosecute pharmaceutical manufacturers and their representatives under the FDCA for speech promoting the lawful, off-label use of an FDA-approved drug.
The opinion strikes me as narrower and less "ringing" than one would gather from Silverglate's description.  Nonetheless, it does move the ball in the direction of less regulation, and less criminalization, of commercial speech.  Given the importance of the subject and the fact that the panel was divided, further review en banc or in the Supreme Court is a substantial possibility.

F-bombs In Court

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When a judge makes a ruling you don't like, the usual response is a motion to reconsider, an appeal, or a writ petition.  Saying "Tell Judge Currie get the f--- off all my cases" is contraindicated.  That was the course chosen by pro se civil litigant Robert Peoples in a federal court in South Carolina.  Mike Scarcella has this story for the NLJ (free registration required).

This resulted in a trial for criminal contempt at which Peoples (no longer pro se) was convicted.  The Fourth Circuit affirmed.

Peoples has filed a certiorari petition in the Supreme Court, Peoples v. United States, No. 12-7544.  Along with the law of contempt, the SC FedPD makes a First Amendment argument, citing Cohen v. California, 403 U.S. 15, 26 (1971), the notorious "F___ the Draft" jacket-in-the-courtroom case.  "If Cohen is correct and the mere use of such a profane word cannot be made a crime, it logically follows that its use may not constitute the reason for criminal contempt."

That "if" would be a good issue for the Court to take up.  As much as I admire Justice Harlan for his many fine opinions, I think he got it wrong on that one.  Freedom of speech does not need to include the freedom to say anything anywhere.  Society can and should insist on a basic level of decorum in its government proceedings.  Cohen et al. can take their protests outside.

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