Now everything will be funneled through a candidate’s committee, which everyone will understand is really just the judge or lawyer-candidate under an authorized cover. —Alan Morrison (May 4, 2015)
Let’s begin with the numbers: Williams-Yulee v. The Florida Bar is the
thirty-eighth free expression opinion rendered by the Roberts Court;
the eighth case during the Chief Justice’s tenure involving elections and campaign funding;
the ninth five-four split in a Roberts Court free expression case;
the sixth five-four split in a campaign-finance case; and
the first of four First Amendment free expression cases the Court has agreed to review this Term.
Two more facts:
Williams-Yulee is the thirteenth majority (plurality re Part II) opinion by the Chief Justice — he has authored more majority opinions in the First Amendment free speech area than anyone else. Justices Anthony Kennedy and Antonin Scalia are next in line with five each.
Finally, it bears noting that this is the second time the Chief Justice Roberts has found a compelling state interest sufficient to trump a First Amendment claim. See Holder v. Humanitarian Law Project (2010).
Okay, enough with the numbers.
Question: Just how important is the Chief’ Justice Roberts’ Williams-Yulee opinion?
Answer: Not very, for the most part, that is. Here is why I say so — aided by some of the insights offered by my friends and colleagues who participated in the SCOTUSblog symposium (see listing below) on Williams-Yulee. I also offer a few related observations.
Seven ways to think about Williams-Yulee . . . & then forget about it:
The Good for One Time Only Holding: Yes, John Roberts jumped ship in a First Amendment case and broke ranks with the “tenacious trio” (Scalia, Thomas, and Alito). But don’t count on that happening again unless you believe in the GOD of SUPREME COURT MIRACLES. And don’t expect strict scrutiny to be so relaxed in future First Amendment cases. By the same token, don’t assume that a majority will settle for such a wide fit when it comes to applying the narrowly tailored doctrine in any other First Amendment free expression cases (national security, government employee speech, and student speech excepted).
Limited to the Facts of this Case Only: For all the ink spent on safeguarding public confidence in the integrity of elections, know this: Williams-Yulee is likely to confined to the particular facts of the case — and not a comma beyond it. With that in mind, consider the fact that this was a case of a judicial candidate personally soliciting campaign funds. It was not a case of a PAC or a corporation or a wealthy donor doing likewise in order to support that same judicial candidate. Or even hosting a fundraising event for such a judicial candidate, replete with that candidate present. Nor was it a case of a judicial candidate making campaign promises as to how he or she would rule in a general class of cases.
A New Holding that Bows to an Old One: The rule of Republican Party of Minnesota v. White (2002) — the case that James Bopp, Jr., successfully argued and the one in which Justice Scalia wrote for the majority — will likely continue to be the First Amendment mainstay in most, if not all, other judicial election cases.
The Judicial Elections Exception to the First Amendment: As evidenced by what it did in United States v. Stevens (2010) and in Brown v. Entertainment Merchants Association (2011), the Roberts Court has sometimes clung to the notion that speech is at least presumptively protected unless it falls into some category of historically unprotected expression. On that very point, Justice Scalia’s dissent (joined by Justice Thomas) took issue with the majority opinion: “Our cases hold that speech enjoys the full protection of the First Amendment unless a widespread and longstanding tradition ratifies its regulation. (citation omitted). No such tradition looms here.” As Ilya Shapiro pointed out, we now have a new exception to the First Amendment, which brings the number to 44 exceptions depending on how you count them.
The Reinvigoration of Disclosure Requirements: One ongoing question in the campaign-finance First Amendment arena is the extent to which the Roberts Court will uphold various disclosure requirements. On this important point, Justice Kennedy (writing for himself alone) noted: “Indeed, disclosure requirements offer a powerful, speech-enhancing method of deterring corruption – one that does not impose limits on how and when people can speak. He then added: “‘Public disclosure also promotes transparency and accountability in the electoral process to an extent other measures cannot.’ Based on disclosures the voters can decide, among other matters, whether the public is well served by an elected judiciary; how each candidate defines appropriate campaign conduct (which may speak volumes about his or her judicial demeanor); and what persons and groups support or oppose a particular candidate.” Question: Will all this praise of disclosure requirements be confined to the narrow facts of Williams-Yulee? Stay tuned!
More Free-Speech Protections Under State Constitutions? It is one of the cornerstones of federalism: A state Court may rely on its own constitution to provide greater rights than those guaranteed under the Federal Constitution, provided it does not violate any federal laws. By that constitutional measure, assume that, say, Arizona had a law identical to the one sustained in Williams-Yulee. Assume furthermore that the state high court in considering the constitutionality of that law under its state constitution concluded that the law was not narrowly tailored and thus struck it down. Assuming that the independent and adequate state grounds doctrine were satisfied, a state court might well take its analytical cue from the dissenters in Williams-Yulee (much as liberal state court judges once took their cue from the dissenting opinions of Justices Brennan and Marshall during the Burger and Rehnquist Court eras).
Does it All Come Down to Recusals and Due Process Challenges? Given the problems that arise when judges run for election, it may be that the only road to fairness, consistent with the demands of the free speech provisions of the federal and state constitutions, are stronger recusal rules and a fortified version of the due process claim sustained in Caperton v. A.T. Massey Coal Co. (2009). In this regard, it is important to note, as the Caperton majority did, that the objective standards of due process do not require proof of actual bias.
A Different View of Williams-Yulee
As with anything in the First Amendment world, others have a different take on Williams-Yulee and see it as significant and even a a sign of things to come: “Roberts’ authorship of the decision was pivotal, and not just because he is chief justice. Roberts has overseen a trend during his tenure toward loosening restrictions on campaign speech and money on First Amendment grounds,” is how Tony Mauro saw it. And as Professor Rick Hasen told Mauro: ““This is a huge win for those who support reasonable limits on judicial elections, and getting [Chief Justice John] Roberts on this side of the issue is surprising, welcome, and momentous.”
Contributors to SCOTUSblog symposium on Williams-Yulee
Ronald Collins, “Foreword: Are elected state judges now ‘above the political fray’?“
Floyd Abrams, “When strict scrutiny ceased to be strict“
Jessica Ring Amunson, “A rare case indeed“
Lawrence Baum, “The Justices’ premises about judicial elections“
Robert Corn-Revere, “For Judges Only“
Robert D. Durham, “Yes, it can hurt just to ask“
Joseph Grodin, “The distinctive character of judging“
Ilya Shapiro, “The judicial-elections exception to the First Amendment“
Matthew Streb, “Much ado about nothing?“
Josh Wheeler, ““Seem familiar?” and other random musings on Williams-Yulee“
→ See also, Alan Morrison, “Williams-Yulee – The ruling with no real-world impact,” Concurring Opinions, May 4, 2015
Pamela Geller — Free Speech’s Controversial Defender
She is an articulate defender of free speech / she is a political firebrand / she is an unabashed self-protmoter and media persona / she is a fearless blogger / she is the co-author of The Omama Administration’s War on America (2010) / she is the president of the American Freedom Defense Initiative / she actively leads various “violent jihads” campaigns / and she is one of the co-founders of Stop Islamization of Nations.
Pamela Geller
Whether its opposition to Islamic community centers, or paid ads on public transit announcing the “war between the civilized man and the savage,” or a “Draw the Prophet” conference in Texas, Ms. Geller sparks controversy of the clear and present danger variety. The Southern Poverty Law Center views her as a dangerous extremist: “Pamela Geller is the anti-Muslim movement’s most visible and flamboyant figurehead. She’s relentlessly shrill and coarse in her broad-brush denunciations of Islam . . . Geller has mingled comfortably with European racists and fascists, spoken favorably of South African racists, defended Serbian war criminal Radovan Karadzic and denied the existence of Serbian concentration camps. She has taken a strong pro-Israel stance to the point of being sharply critical of Jewish liberals.”
The 56-year-old activist denies she is racist: “They say I’m a racist, Islamophobic, anti-Muslim bigot,” Geller told the Village Voice in 2012. “I’m anti-jihad. . . I don’t see how anyone could say I’m anti-Muslim. I love Muslims.”
Predictably, Pamela Geller is in the news again — all over it! Here is a modest sampling:
“Pamela Geller Defends Garland Free Speech Event,” Fox News, May 4, 2015
“Pamela Geller on Hannity Discussing Jihad Attack on Free Speech Conference,” Fox News, May 4, 2015
“Post Texas Shooting: Is Free Speech a ‘Mousetrap’ for Terrorism?,” Trifecta, May 4, 2015
Alan Feuer, “Pamela Geller, Organizer of Muhammad Cartoon Contest, Trumpets Results,” New York Times, May 4, 2015
Haroon Mohgul, “Don’t be fooled by Pamela Geller,” CNN, May 4, 2015
Christine Mai-Duc, “Texas cartoon contest shooting: Why images of Muhammad are offensive to Muslims,” Los Angeles Times, May 4, 2015
Jonathan Tilove, “Abbott says cartoon contest had First Amendment right to mock Muhammad,” Austin Stateman, May 4, 2015
Lindsey Wise & Jonathan Landay, “After Texas shooting: If free speech is provocative, should there be limits?,” Miami Herald, May 4, 2015
→ Maamoun Youssef, “IS claims responsibility for Texas cartoon attack,” Yahoo News, May 5, 2015
→ Donna Carol Viss, “The First Amendment Protects Flag Stomping and Muhammad Drawing. Will It Protect Wedding Refusing in the End?,” The Blaze, May 5, 2015
One wonders: Where will all of this lead? Will some city official or prosecutor attempt yet again to censor her, either directly or indirectly? Will she be the object of some civil or even criminal action? Will she be the target of some assassin? Perhaps. But she doesn’t seem worried — she is too busy speaking her mind.
“Dershowitz Clashes with CNN Guest After Saying Only Radical Muslims ‘Threaten’ Speech,'”
CNN, May 4, 2015
_______________________________
Salman Rusdie
This issue [about PEN and Charlie Hebdo] has nothing to do with an oppressed and disadvantaged minority. It has everything to do with the battle against fanatical Islam, which is highly organised, well funded, and which seeks to terrify us all, Muslims as well as non Muslims, into a cowed silence. (source here)
Dr. Faheem Younus
This is hate speech that invites violence. (referring to Ms. Geller) (source here)
FIRE Spreads: Western Michigan U. Settles ‘Speech Tax’ Lawsuit
GRAND RAPIDS, Mich., May 4, 2015— “Western Michigan University (WMU) has agreed to settle a First Amendment lawsuit that alleged the university taxed controversial speech by making student organizers pay for extra security to host rapper and social activist Boots Riley on campus.”
“The lawsuit, filed in October 2014 as part of the Foundation for Individual Rights in Education’s (FIRE’s) Stand Up For Speech Litigation Project, also challenged WMU’s posting and space reservation policies. Following settlement talks overseen by a federal magistrate judge, WMU has agreed to revise its policies to comply with the First Amendment and pay $35,000 in damages and attorneys’ fees.”
“The settlement is the fifth victory for the Stand Up For Speech Litigation Project. Stand Up For Speech lawsuits have resulted in settlements totaling over $270,000, and have resulted in policy reforms restoring the First Amendment rights of more than 150,000 students at public campuses in California, Hawaii, Michigan, and Ohio.”
“‘With this important victory at WMU, each of the five concluded Stand Up For Speech lawsuits has been settled in favor of the First Amendment,’ said FIRE President and CEO Greg Lukianoff. . . .”
“Attorneys Robert Corn-Revere, Ronald London, and Lisa Zycherman of the law firm Davis Wright Tremaine have represented all of the Stand Up For Speech student and faculty plaintiffs, including KPC. FIRE has coordinated nine Stand Up For Speech lawsuits to date; four remain ongoing.. . .” (Source here).
Headline: “Miami First Amendment Activist Sues for Right to Film in Florida Courtroom”
Carlos Miller
“For the past eight years, Carlos Miller has operated the Miami-based website Photography Is Not a Crime (PINAC), a nationally known free speech and media advocacy blog with roughly a million visitors a month. But recently a Jacksonville judge ruled the organization couldn’t film the trial of its own correspondent because the site doesn’t fit the court’s definition of a media organization.”
“Now PINAC is fighting back by filing a lawsuit to get the right to film in courtrooms. ‘The laws are very clear,’ Miller tells New Times. ‘But now, in this case, the judge does not want us to record… because they don’t like our organization.'” (Source: The New Times, April 30, 2015)
Quote of the Week
The First Amendment was designed not to protect speech that we like, but speech that we don’t like. The most outrageous, offensive, incendiary speech is why the First Amendment was born. Speech at the fringes, debate at the edges, things that make people upset . . . [we protect it all] because that’s how important free speech is in this country. – Megyn Kelly, The O’Reilly Factor, May 4, 2015
Retaliation Case Pending Before High Court
→ David Keating, “First Amendment Rights at Stake in Wis. Political Speech Case,” Real Clear Politics, April 30, 2015. Here is an excerpt from that article:
. . . Unhappy with Gov. Scott Walker’s political and policy victories in 2010, Milwaukee County District Attorney John Chisholm launched an investigation of nearly every conservative organization that supported Walker’s reforms. The extraordinarily broad “John Doe” investigation, complete with pre-dawn armed police raids and gag orders preventing the targets from speaking publicly about the case, was purportedly meant to find violations of campaign finance statutes — theoretical coordination between these organizations, created to voice their political beliefs, and Governor Walker’s campaign. Not a single judge has agreed with any of these theories. In fact, the state’s attorney general and election-law regulator both repudiated them.
Chisholm, according to a fellow prosecutor, “felt it was his personal duty to stop Walker,” and any means were apparently justifiable to reach these ends. This included investigations on the thinnest of pretexts meant to intimidate groups and individuals from speaking out, along with attacks on those that did in order to send a message to all groups that free speech was no longer protected in Wisconsin. Even if an investigation was justified, there is no justification for such heavy-handed and dangerous methods.
Unless the Supreme Court takes their case, known as O’Keefe v. Chisholm, the victims of these bullying tactics, and others in the future, will never get their day in court. . . .
(David Keating is the president of the Center for Competitive Politics, a nonprofit that works to promote and defend First Amendment rights to free political speech, assembly, and petition.)
Lincoln Caplan on Justice Kagan & Free Speech . . . & more
Lincoln Caplan, “The Junior Justice: Elena Kagan is rewriting the role of a Supreme Court justice in American democracy,” American Prospect (Spring, 2015)
In a point-by-point comparison of conceptual insight, persuasiveness, eloquence, and argumentative verve, Kagan surpasses the other current justices in the quality and logic of her prose. It is premature to compare her with Justices Oliver Wendell Holmes Jr., Louis D. Brandeis, Robert H. Jackson, or other Olympian writers of the Court since it first sat in 1790, but, in one way, she already stands out even in that company. — Lincoln Caplan
→ Justice Kagan was similarly praised and portrayed as the next major figure on the Court (including in the free speech area re campaign finance cases) by Professor Mark Tushnet in his book In the Balance: Law and Politics on the Roberts Court (2013).
New & Notable Blog Posts
Andrea Anastasi, “Reframing the fight for LGBT equality as a First Amendment issue,” Newsworks, May 5, 2015
Ruthann Robson, “Ninth Circuit Rejects First Amendment Challenge to Disclosure of Significant Donors to NonProfit,” Constitutional Law Prof Blog, May 1, 2015
Kozinski to Write Foreword to Book on History of Cinema & Free Speech
Ninth Circuit Judge Alex Kozinski is listed as the author of a foreword to a forthcoming book titled Dirty Words and Filthy Pictures: Film and the First Amendment by Jeremy Geltzer. The book is slated to be published in early January of 2016 by the University of Texas Press (354 pp). Here is the publisher’s advance notice:
“From the earliest days of cinema, scandalous films such as The Kiss (1896) attracted audiences eager to see provocative images on screen. With controversial content, motion pictures challenged social norms and prevailing laws at the intersection of art and entertainment. Today, the First Amendment protects a wide range of free speech, but this wasn’t always the case. For the first fifty years, movies could be censored and banned by city and state officials charged with protecting the moral fabric of their communities. Once film was embraced under the First Amendment by the Supreme Court’s Miracledecision in 1952, new problems pushed notions of acceptable content even further.”
“Dirty Words & Filthy Pictures explores movies that changed the law and resulted in greater creative freedom for all. Relying on primary sources that include court decisions, contemporary periodicals, state censorship ordinances, and studio production codes, Jeremy Geltzer offers a comprehensive and fascinating history of cinema and free speech, from the earliest films of Thomas Edison to the impact of pornography and the Internet. With incisive case studies of risqué pictures, subversive foreign films, and banned B-movies, he reveals how the legal battles over film content changed long-held interpretations of the Constitution, expanded personal freedoms, and opened a new era of free speech. An important contribution to film studies and media law, Geltzer’s work presents the history of film and the First Amendment with an unprecedented level of detail.”
* * * *
Now protected expression in Allegheny Township, PA
See news story here (“A Blair County judge has ruled that an Allegheny Township man cannot be criminally prosecuted for his actions involving the American flag. Joshua Brubaker said he was standing up for his American Indian heritage and expressing his beliefs when he hung an American flag upside down and spray painted the letters A-I-M on it.”)
New in Paperback & Kindle
Timothy Zick, The Cosmopolitan First Amendment: Protecting Transborder Expressive and Religious Liberties (Cambridge University Press, Aug. 2015). Publisher’s notice below:
“We live in an interconnected world in which expressive and religious cultures increasingly commingle and collide. In a globalized and digitized era, we need to better understand the relationship between the First Amendment to the United States Constitution and international borders. This book focuses on the exercise and protection of cross-border and beyond-border expressive and religious liberties, and on the First Amendment’s relationship to the world beyond U.S. shores. The examination reveals a cosmopolitan First Amendment that protects robust cross-border conversation and commingling, facilitates the global spread of democratic principles, recognizes expressive and religious liberties regardless of location, is influential across the world despite its exceptionalist character, and encourages respectful engagement with the liberty regimes of other nations. The cosmopolitan First Amendment is the product of a variety of historical, social, political, technological, and legal developments. Its principles and justifications are presented through an examination of the First Amendment’s relationship to foreign travel, immigration, cross-border communication and association, religious activities that traverse international borders, conflicts among foreign and U.S. speech and religious liberty models, and the conduct of international affairs and diplomacy.”
Forthcoming Book
Micky Huff & Andy Lee Roth, editors, Censored 2016: The Top Censored Stories and Media Analysis of 2014-15 (Seven Stories Press, October 6, 2015)
New & Forthcoming Scholarly Articles
Robert Post, “Compelled Commercial Speech,” West Virginia Law Review (forthcoming 2015) (Fourth Annual C. Edwin Baker Lecture for Liberty, Equality, and Democracy) (SSRN draft here)
Jennifer Kinsley, “The Myth of Obsolete Obscenity,” Cardozo Arts & Entertainment Law Journal (forthcoming, 2015)
Yaman Salahi & Nasrina Bargzie, “Talking Israel and Palestine on Campus: How the U.S. Department of Education Can Uphold the Civil Rights Act and the First Amendment,” Hastings Race & Poverty Law Journal (2015)
News Stories, Op-eds & Blog Posts
Eugene Volokh, “Charlie Hebdo censorship controversy at the University of Minnesota,” The Volokh Conspiracy, May 5, 2015
Burt Neuborne, “The Limits of the Williams-Yulee Opinion,” ACS blog, May 5, 2015
Ed Morrissey, “Yet more journalists not grasping the First Amendment,” Hot Air, May 5, 2015
Bob Adelmann, “Virginia: First Amendment Victory for Church as Officials Back Off,” The New American, May 5, 2015
Jennifer M. Kinsley, “First Amendment Sexual Privacy: Adult Sexting and Federal Age- Verification Legislation,” New Mexico Law Review (2014)
New YouTube Posts
“Louie Louie and the First Amendment” Poynter
Greg Gutfeld, “Free speech under attack in America,” Fox News, May 4, 2015
Greta Van Susteren, “Use good judgment with first amendment rights,” Fox News, May 4, 2015
“Free Speech, Anti-Muslim Ads & Mohammed Cartoons,” David Pakman Show, May 5, 2015
Flashback Video
“Pat Paulsen Censorship Mainstream Media 1968,” Smothers Brothers Comedy Hour — here are a few choice lines from Paulsen’s skit:
— “Censorship is not unconstitutional. Censors have a right to censor what you hear. TheBill of Rights says nothing about freedom of hearing.”
—“Without censorship of television, how elese can you, the American public, have the protection you want from vulgar scenes, overexposed bodies, and all the other sights you like to see. There is nothing in the Bill of Rights about freedom of seeing. You can look for it, but if you see it, you’d better not show it to anybody.”
— “So you can see, there is a place for censors — we only wish we could tell you where it is.”
THE COURT’S 2014-15 FREE EXPRESSION DOCKET
[last updated: 5-4-15]
Cases Decided
Williams-Yulee v. The Florida Bar (argued: Jan. 20, 2015 / decided: April 29, 2015) (5-4 per Roberts)
Review Granted & Cases Argued
Elonis v. United States (argued on 12-1-14)
Williams-Yulee v. The Florida Bar (argued 1-20-15)
Reed v. Town of Gilbert (argued on 1-12-15)
Walker v. Texas Division, Sons of Confederate Veterans (argued 3-23-15)
Pending Petitions*
Berger v. American Civil Liberties Union of North Carolina (license plate case)
Thayer v. City of Worcester
Friedrichs v. California Teachers Association, et al. (4-27-15: The Court asked the Calif. AG to respond to the petition)
Central Radio Co., Inc. v. City of Norfolk (amicus brief by Eugene Volokh)
O’Keefe v. Chisholm (distributed for Conference of May 14, 2015)
Review Denied*
King v. Christie
Apel v. United States
Dariano v. Morgan Hill Unified School District
The Bronx Household of Faith v. Board of Education of the City of New York
Arneson v. 281 Care Committee
Kagan v. City of New Orleans
ProtectMarriage.com-Yes on 8 v. Bowen
Clayton v. Niska
Pregnancy Care Center of New York v. City of New York
City of Indianapolis, Indiana v. Annex Books, Inc.
Ashley Furniture Industries, Inc. v. United States
Mehanna v. United States
Stop This Insanity Inc Employee Leadership Fund et al v. Federal Election Commission
Vermont Right to Life Committee, et al v. Sorrell
* Though these lists are not comprehensive, I try to track as many cases as possible. If you know of a cert. petition that is not on these lists, kindly inform me and I will post it.
LAST SCHEDULED FAN POST, #58: “Citizen Recordings of Police in Public Places — First Amendment Protection?”
NEXT SCHEDULED FAN POST, #60: Wednesday, May 13, 2015