He brags about it, he is proud of it, he put it on his Facebook page, and now he’s going to be held accountable for it. The only reason that was done was to upset people. And if he wanted to engage in that kind of behavior, there’s consequences. — District Attorney William Higgins
A 1972 Pennsylvania law makes it a crime (a misdemeanor) to “intentionally desecrate any public monument or structure, or place of worship or burial.” That same law criminalizes the behavior of anyone who “intentionally desecrates any other object of veneration by the public or a substantial segment thereof in any public place.”
William Higgins
Here is the relevant definition: “Desecrate.” “Defacing, damaging, polluting or otherwise physically mistreating in a way that the actor knows will outrage the sensibilities of persons likely to observe or discover the action.” (See here for a list of similar desecration laws.)
Bedford County District Attorney William Higgins (FB re-election page here) has invoked that law to go after a 14-year-old boy who allegedly placed photos of himself “placing his crotch near the mouth of a statue of Jesus in prayer on Facebook. The allegedly victimized Jesus statue sits in the front yard of Love In the Name of Christ, a Christian organization in teen’s hometown of Everett, Pa.”
→ Photos of “desecration” here and video of CBS news affiliate story here, replete with phone comments by Mr. Higgins.
As reported in the Altoona Mirror, and as Mr. Higgins is said to have written on his Facebook page: “”I guess I should take solace in the fact that the liberals are mad at me – again. As for this case, this troubled young man offended the sensibilities and morals of OUR community. … His actions constitute a violation of the law, and he will be prosecuted accordingly. If that tends to upset the ‘anti-Christian, ban-school-prayer, war-on-Christmas, oppose-display-of-Ten-Commandments’ crowd, I make no apologies.'”
Jesus statue at center of controversy
→ “Apparently, Mr. Higgins is unaware that the statue isn’t actually Christ, or even a revered piece of art depicting Jesus,” says columnist Drew Johnson writing in the Washington Times. “It’s just a painted piece of concrete mass produced from a mold and sold at flea markets, garden shops and home improvement stores across America. In fact, a slightly smaller version of the statue is available on Sears’ website for $225.” While that may be, the statue does nonetheless resemble what is often thought to be a Christ-like figure.
→ “There are some serious First Amendment issues with this statute” if merely gesturing next to an image is enough to be charged,” said Sara Rose, a staff attorney with the ACLU of Pennsylvania.
→ Professor Eugene Volokh, who first blogged on this story, argues: (1) by its terms, it is arguable whether the statute has been violated; (2) the law might be impermissibly vague; and (3) the law, on its face or as applied, may run afoul of the free speech clause of the First Amendment.
→ “Bedford County President Judge Thomas S. Ling said the next set of juvenile court hearings is scheduled for Oct. 3rd.”
Tenth Circuit rules in “true threats” case
Writing for a three-judge panel in United States v. Heineman (10th Cir., Sept. 15, 2014), Judge Harris Hartz (joined by Judge Robert Bacharach with Judge Bobby Ray Baldock concurring in the judgment) reversed the Defendant’s conviction in a “true threats” case,this even while the same general issue in the case is soon to be decided by the Supreme Court in Elonis v. United States.
Facts: “In 2010 and 2011 Defendant sent three e-mails espousing white supremacist ideology to a professor at the University of Utah. The first two e-mails did not contain threats, but the third made the professor fear for his safety and the safety of his family. Entitled “Poem,” it began by addressing the professor by his first name, and contained the following language:
Come the time of the new revolution
we will convene to detain youAnd slay you,
by a bowie knife shoved up into the skull from your pig chin
you choke, with blood flooding in your filthily treasonous throat!
We put the noose ring around your neckand drag you as you choke and gasp
The noose laid on the tree branch
and the fate hath conferred justice for Treason
You are a filthy traitor along the horde of anti-American and anti-Whitey comrades
whose justice shall come to be delivered
To fuck the traitors, for justice!
fuck Mexico! fuck South America!
Fuck your soul to Hell!
Into the furnace pool of MexiShit as the filthily traitorous asshole and puta!
“Law-enforcement officers traced the e-mail to Defendant through his e-mail address, which had the user name “siegheil_neocon.” Id. at 91. When officers contacted him in writing, he responded immediately, “Is this about the email?” Id. He was charged in the United States District Court for the District of Utah with one count of sending an interstate threat, in violation of 18 U.S.C. § 875(c).”
Against that factual backdrop, Judge Hartz declared:
[T]o say that the effect on the listener supports a “threat” exception to the freedom of speech does not mean that no other considerations come into play. For example, it may be worth protecting speech that creates fear when the speaker intends only to convey a political message. As we understand Black, the Supreme Court has said as much. When the speaker does not intend to instill fear, concern for the effect on the listener must yield. In short, despite arguments to the contrary, we adhere to the view that Black required the district court in this case to find that Defendant intended to instill fear before it could convict him of violating 18 U.S.C. § 875(c). [footnote omitted] [re Defendant Heineman, see news story here]
While Judge Baldock concurred in the judgment, he declined to reach the First Amendment issue and instead grounded his opinion on statutory grounds: “The question presented in this case is whether § 875(c) requires the Government to prove a defendant’s subjective intent to threaten. The court concludes the First Amendment requires such proof. But to my mind we should resolve this case without resorting to the First Amendment by simply construing the statute’s text. Indeed, we are duty bound not to reach constitutional questions unnecessarily even if the parties ask us to do so.”
→ The case was successfully argued by Benjamin McMurray, Assistant Federal Public Defender (Kathryn Nester, Federal Public Defender, with him on the briefs), District of Utah, Salt Lake City, Utah.
→ Questions: One wonders how the ruling in this case might affect the judgment and the analysis in Elonis. For example, will the facts prompt some of the Justices to be more guarded in their First Amendment analysis? Will the Heineman ruling further encourage some of the Justices to dispense with Elonis on statutory grounds? Or, will the Heineman ruling dissuade them from ruling in Mr. Elonis’ favor on either statutory or First Amendment grounds? Or are the facts in Elnois readily distinguishable such as to sustain the Defendant’s claims, either on statutory or constitutional grounds? Finally, if cert. is sought in Heineman, perhaps the Justices will remand it for consideration in light of whatever they do in Elonis. Meanwhile, one thing seems likely: the Heineman facts may well find their way into the oral arguments in Elonis.
→ Note: The Heineman majority declined to follow the ruling of the Sixth Circuit in another “true threats” case — United States v. Jeffries, 692 F.3d 473, 477–81 (6th Cir. 2012), cert. denied, 134 S. Ct. 59 (2013). That case, it should be noted, was also discussed at some length in the government’s reply brief in Elonis as well as in the ACLU’s amicus brief in that case.
(Hat tip to Joan Bertin)
Free expression cases on Court’s Conference docket
The following free expression First Amendment cases are up for consideration at the Court’s Monday, September 29th “Long Conference”:
Williams-Yulee v. The Florida Bar (docket #: 13-1499)
Issue: Whether a rule of judicial conduct that prohibits candidates for judicial office from personally soliciting campaign funds violates the First Amendment.
City of Indianapolis, Indiana v. Annex Books, Inc. (docket #: 13-1441)
Issue: Whether, to satisfy the First Amendment as applied in Renton v. Playtime Theatres, Inc. and its progeny, an hours-of-operation regulation targeting negative secondary effects must be supported by highly specific, statistically significant empirical evidence.
Ashley Furniture Industries, Inc. v. United States (docket #: 13-1367)
Issue: (1) Whether a statute that denies a government benefit based on a recipient’s failure to express support for a proposed course of government action, is subject to, and survives, strict scrutiny under the First Amendment; and (2) whether, to successfully defend a viewpoint-discriminatory statute subject to intermediate scrutiny under Central Hudson Gas & Electric Corp. v. Public Service Commission, the government must prove that non-discriminatory measures would fail to satisfy the government’s interests.
Mehanna v. United States (docket #: 13-1125)
Issue: Whether a citizen’s political and religious speech may constitute provision of “material support or resources” to a foreign terrorist organization (FTO) under the “coordination” rubric of Holder v. Humanitarian Law Project, when the government conceded that petitioner was not instructed by the FTO, and the evidence showed that he did not interact with the FTO, but rather viewed, translated, and disseminated materials of his own choosing, while expressing moral support for certain views of the FTO, and associating on the Internet with persons who the government claims had themselves associated with the FTO.
(Hat tip to Maureen Johnston @ SCOTUSblog)
Quote of the week
If Citizens United were reversed, and the restrictions of McCain-Feingold restored, Fox News (a corporation exempt from the restrictions in the law), could without limit praise and support an anti-birth control candidate like Rick Perry, but Planned Parenthood couldn’t buy time to respond. — Ira Glasser
First Amendment museum in the works
According to Keith Edwards, writing in the Kennebec Journal, “Genie Gannett, granddaughter of Maine publishing magnate Guy Gannett, got chills as she saw the text of the First Amendment etched into a massive stone tablet at the entrance to the [Newseum] that champions the five freedoms of the First Amendment. She and other Gannett family members want to bring to Augusta those same chills and reverence for [that] constitutional amendment.”
Built in 1911, the Gannett House in Maine is set to be renovated.
“Family members and other members of the board of directors of The Gannett House Project want to turn the Gannett House into an interactive museum dedicated to understanding and appreciating the First Amendment. . . . Gannett said exhibits would include looks at the past, present and future of journalism and free speech, including the digital age of today. She said the group also envisions the building hosting speakers, educational events and visits from schoolchildren from across the state. Exhibits and presentations would likely include discussions of banned books. She said educational exhibits and presentations could also include Maine connections such as those about Elijah Parish Lovejoy, a Colby College graduate, Albion native and journalist who condemned slavery before he was killed by a pro-slavery mob during an attack on his press in 1837.”
Former Trib publisher gets First Amendment award
Donnis Baggett
This from an AP news story: “Longtime Texas journalist and former Tribune-Herald publisher and editor Donnis Baggett was the recipient of the 2014 James Madison Award, presented by the Freedom of Information Foundation of Texas. . . . .The Madison award is given to those demonstrating a commitment to upholding the principles of the First Amendment. . . . Baggett leads the press association’s governmental affairs program, focusing on protecting open records, open meetings and public notices.Baggett worked for Texas newspapers for nearly 40 years before joining the press association in 2012.”
Reminder: Campaign Finance & First Amendment event tomorrow
Tomorrow at noon the Heritage Foundation (214 Massachusetts Ave. N.E., Wash. D.C.) will host a panel on campaign finance litigation and free speech. The event will feature: Floyd Abrams, Erin Murphy, and Ronald Collins. Adam Liptak will be the moderator. The event will also be streamed online. Registration information is available here.
Volokh Watch
Since Professor Eugene Volokh writes so much and so well on a variety of First Amendment issues, I’ve decided to create a special section with news items from his informative blog, the Volokh Conspiracy. Here are the headlines and links to a few recent posts:
“Did California make it illegal for businesses to stop dealing with customers who insult them?,” Sept. 12, 2014
“Ohio ban on knowingly false statements in political campaigns is unconstitutional,” Sept. 11, 2014 (See also Rick Hasen’s post on this)
“No ‘boobie pillows’ for you (at least within 1,000 feet of a highway) — this is Bakersfield!,” Sept. 11, 2014
“In Syracuse (N.Y.), it’s a crime to exhibit a coffin in any place visible to passersby,” Sept. 10, 2014
Video clip of the week
This clip from the Onion News Network: “Supreme Court Rules First Amendment Does Not Apply To Annoying Man“
Quick Hits
Scholarly Articles
Charlotte Garden, “Unions and Campaign Finance Litigation,” 14 Nev. L.J. 364 (2014)
Dustin B. Benham, “Dirty Secrets: The First Amendment in Protective-Order Litigation,” 35 Cardozo L. Rev. 1781 (2014)
Renee Newman Knake, “Legal Information, the Consumer Law Market, and the First Amendment,” 82 Fordham L. Rev. 2843 (2014)
Kristen Hosack, “Holy Smokes! Can the Government compel Tobacco Companies to Engage in Inflammatory Commercial Speach?,” 2014 U. Ill. L. Rev. 881 (Student Note)
Jacqueline Waldman, “Prior Restraint and the Police: The First Amendment Right to Disseminate Recordings of Police Behavior,” 2014 U. Ill. L. Rev. 311 (Student Note)
Op-eds, Editorials, Stories & Cartoons
Nota bene
→ Ira Glasser,”Standing Strong for Free Speech: A Response to Geoffrey Stone,” Huffington Post, Sept. 12, 2014 (Geoffrey Stone post here)
→ Leahy statement on proposed constitutional amendment to permit to permit campaign finance reform, Sept. 11, 2014
→ Tony Mauro, “Justices Get Schooled in RapAmicus briefs emerge in First Amendment case,” National Law Journal, Sept. 15, 2014
→ Rick Hasen, “Danziger Cartoon Channels Anatole France in Describing CJ Roberts’ McCutcheon Opinion” (cartoon here)
David Azerrad, “What’s Behind the Assault on the First Amendment?,” The Daily Signal, Sept. 17, 2014
Ruthann Robson,”District Judge Finds Ohio’s Prohibition of Campaign Falsehoods Violates First Amendment,” Constitutional Law Prof blog, Sept. 15, 2014
David Gelernter, “‘Free’ Speech at Yale,” National Review Online, Sept. 14, 2014
George Will, “Senate extremism against free speech,” The Daily Telegram, Sept. 14, 2014
Jim Gaines, “A constitutional amendment to take Big Money out of politics dies quietly,” Reuters, Sept. 12, 2014
David Harsanyi, “Actually, Senators, You’re the Ones Who Threaten the Country,” Reason, Sept. 12, 2014
Peter Roff, “The First Amendment Is Alive and Well,” US News & World Report, Sept. 12, 2014
Last FAN Column: #31 — ““Freedom from Speech” — a timely broadside“
Next FAN Column: #33 — Wednesday, Sept. 24th