Recently in First Amendment Category

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.

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.

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.

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.

Neal Riley reports in the San Francisco Chronicle:

Undressing in public will likely no longer go unpunished in San Francisco, as the Board of Supervisors voted by the barest of margins Tuesday to ban public nudity.

Derided by nudity defenders as an attack on personal expression and supported by others who've had enough of seeing those who let it all hang out, the legislation bans genital exposure on all city sidewalks, plazas, parklets, streets and public transit.

As for the outdoor venues, I would have thought that San Francisco's permanently chilly weather would be a sufficient deterrent.  I wear a sweater there in August.  But some nudists are determined.

You know what comes next, of course:

Tuesday, Congress passed H.R. 1627, with the ungainly title of Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012.  Among its provisions is a prohibition against a demonstration within 300 feet of a cemetery within the period 2 hours before and after the funeral of "a member or former member of the Armed Forces" which "disturbs or tends to disturb the peace or good order of such funeral."

The bill is a reaction to the bizarre and despicable practice of the Westboro Baptist Church demonstrating at the funerals of service members, claiming that their deaths are God's retribution against America for tolerance of homosexuality.  A common law tort judgment was reversed by the Supreme Court last year in Snyder v. Phelps.  The Court expressly refrained from deciding whether statutory "time, place, and manner" restrictions would be constitutional, however.  (See pp. 10-11 of the slip opinion.)

Will the Supreme Court uphold this law?  (Assuming, of course, the President doesn't veto it.)  Hard to say.  Given the Court's astonishing and appalling creation of a constitutional right to lie about receiving a medal of valor in United States v. Alvarez, nothing is certain.

Update:  The President signed the bill.  It is Public Law 112-154.

A few days ago, I put up an entry about the (frankly) crazed prosecution of a marine biologist, a case begun, and now in its seventh year, because a member of her crew whistled at a whale.  The point I was making was that the sprawl of criminal law, while justifiably viewed with growing concern by many conservatives and others ordinarily sympathetic to the prosecution point of view, masks an even more pernicious problem  --  replacing law with ideology.  The particular ideology now elbowing law out of the way is Political Correctness.  I thought this was wonderfully illustrated by the unhinged version of environmentalism on display in the whale whistling case, and by the even more unhinged version of seething feminism and race-based bullying on display in the Duke lacrosse scandal of a few years ago.

Sheri Qualters has this article in the NLJ (free reg. required):

The U.S. Court of Appeals for the First Circuit has rejected the claims of two researchers seeking to quash subpoenas issued to Boston College by the U.S. government on behalf of British authorities. The United Kingdom wants interview materials of a former Irish Republican Army member as part of its investigation of a kidnapping and murder.

The Supreme Court's decision in the Stolen Valor Act case, United States v. Alvarez is here.

This is a profoundly disappointing decision.  Government prohibits speech and other forms of expression which are false or even have a potential to mislead under circumstances much less compelling than those in this case.  In the Gay Olympics case, for example, the Court upheld a prohibition on the use of a historical word to describe an athletic event because it might dilute the trademark given by Congress to one organization.  In trademark law, Congress prohibits selling cheap imitations of expensive items even if the buyer is very well aware it is not the famous brand, and the only deception is of the people who see the buyer and think the item is the expensive one.  Justice Alito notes in the dissent, "Surely it was reasonable for Congress to conclude that the goal of preserving the integrity of our country's top military honors is at least as worthy as that of protecting the prestige associated with fancy watches and designer handbags."

The Court has needlessly stretched the First Amendment out of shape to create a constitutional right to lie.  Our core constitutional rights are debased, not enhanced, by stretching them out of shape to extend far beyond their proper scope. This is a sad day for America's genuine heroes, and it is a sad day for the Constitution.

Some years back, Nicole Richie was in a TV show (which I never watched*) called The Simple Life.  Two spoiled rich girls do the Green Acres bit and go live in the country.  So on the 2003 Billboard Music Awards, she said, "Why do they even call it The Simple Life? Have you ever tried to get cow @#*& out of a Prada purse? It's not so $%*&ing simple."

The question of whether it violates the First Amendment for the FCC to punish the broadcaster for this made its way for the second time to the Supreme Court.

What's the answer?  It's not so $%*&ing simple. 

So the Court ducked the First Amendment question and decided on the due process ground that the broadcasters had not received sufficient notice of the standards to be applied.

The Citizens United case has riled the Left at least since President Obama gave his on-high, if not particularly accurate, scolding to the Supreme Court  -- or at least those members of the Court having the misjudgment to think they could attend the State of the Union speech without being lectured like a bunch of misbehaving first graders.

The transcript of oral argument in United States v. Alvarez is now available here.  Both sides received some intense questioning from some of the same Justices.

Justice Kennedy does not buy the argument that lies are completely unprotected except for "breathing space" limitations.  However, he seems inclined to uphold the act on narrower grounds, if he can find some.

The defense side argument that medal frauds harm no one appears to be a nonstarter.  Justice Sotomayor notes the outrage of legitimate medal winners.  Justice Breyer notes that the Court upheld protection of the Olympic Committee's monopoly on the word Olympics, a matter of considerably lesser moment, and says, "All right. So I'm just saying in my mind there is real harm, and there is real harm and yet I can think of instances where we do want to protect false information."

The most important exchange may be this one:

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.