Yesterday, the DC Circuit handed down its ruling in National Association of Manufacturers v. SEC. The case involves a First Amendment challenge brought by the National Association of Manufacturers concerning the SEC’s conflict minerals disclosure rule, which requires companies to publicly disclose their use of conflict minerals that originated in the Democratic Republic of the Congo (DRC) or an adjoining country. “Conflict minerals” are minerals mined in conditions of armed conflict and human rights violations, particularly in the DRC.
Judge Raymond Randolph (photo by Adrian R. Rowan)
By a 2-1 margin, the court ruled that the SEC disclosure requirement violated the First Amendment. Circuit Judge Raymond Randolph wrote the majority opinion which Judge David Sentelle joined. Judge Sri Srinivasan dissented.
The case was reheard in light of the court’s ruling in American Meat Institute v. U.S. Department of Agriculture (D.C. Cir. 2014) (en banc) and its treatment of Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio (1985).
“Using Zauderer’s relaxed standard of review,” said Judge Randolph, “AMI held that the federal government had not violated the First Amendment when it forced companies to list on the labels of their meat cuts the country in which the animal was born, raised, and slaughtered. The AMI court therefore overruled the portion of our decisions in NAM, R.J. Reynolds, and National Association of Manufacturers v. NLRB holding that the analysis in Zauderer was confined to government compelled disclosures designed to prevent the deception of consumers.” In yesterday’s ruling, the majority declared that the issue then before it was “whether Zauderer, as now interpreted in AMI, reaches compelled disclosures that are unconnected to advertising or product labeling at the point of sale.”
Judge Randolph concluded that “Zauderer has no application to this case.This puts the case in the same posture as in our initial opinion when we determined that Zauderer did not apply, but for a different reason. As we ruled in our initial decision, we need not decide whether ‘strict scrutiny or the Central Hudson test for commercial speech’ applies. For the reasons we gave in that opinion, the SEC’s ‘final rule does not survive even Central Hudson’s intermediate standard.’ We need not repeat our reasoning in this regard.” (footnotes omitted)
To buttress the majority’s First Amendment argument, Judge Randolph added: “But given the flux and uncertainty of the First Amendment doctrine of commercial speech, and the conflict in the circuits regarding the reach of Zauderer, we think it prudent to add an alternative ground for our decision. It is this. Even if the compelled disclosures here are commercial speech and even if AMI’s view of Zauderer governed the analysis, we still believe that the statute and the regulations violate the First Amendment.” (footnotes omitted) The majority thus concluded that “the Commission’s final rule, 77 Fed. Reg. at 56,362-65, violate[s] the First Amendment to the extent the statute and rule require regulated entities to report to the Commission and to state on their website that any of their products have ‘not been found to be ‘DRC conflict free.’’”
Judge Sri Srinivasan
Writing in dissent, Judge Srinivasan argued that “[i]ssuers of securities must make all sorts of disclosures about their products for the benefit of the investing public. No one thinks that garden-variety disclosure obligations of that ilk raise a significant First Amendment problem. So here, there should be no viable First Amendment objection to a requirement for an issuer to disclose the country of origin of a product’s materials—including, say, whether the product contains specified minerals from the Democratic Republic of the Congo (DRC) or an adjoining country, the site of a longstanding conflict financed in part by trade in those minerals. Such a requirement provides investors and consumers with useful information about the geographic origins of a product’s source materials. Indeed, our court, sitting en banc, recently relied on “the time-tested consensus that consumers want to know the geographical origin of potential purchases” in upholding a requirement for companies to identify the source country of food products. Am. Meat Inst. v. U.S. Dep’t of Agric. It is hard to see what is altogether different about another species of “geographical origin” law requiring identification of products whose minerals come from the DRC or adjoining countries.”
The Liberal Divide Widens — Abrams & Post on the Vices vs Virtues of Reed Ruling
The case is Reed v. Town of Gilbert (2015). The 9-0 sign case was handed down last Term in an opinion by Justice Clarence Thomas (Justices Breyer, Sotomayor and Kagan concurred in the judgment only). The merit of the Gilbert majority opinion is open to debate as evidenced by recent statements by Floyd Abrams (Yale Law School’s most distinguished First Amendment lawyer) and Robert Post (YLS’ dean and a First Amendment scholar). Their differences were highlighted in a column by yet another Yalie, NYT Supreme Court correspondent Adam Liptak. The article is titled: “Court’s Free-Speech Expansion Has Far-Reaching Consequences.” The differences between the First Amendment lawyer and the First Amendment scholar centered around Justice Thomas’s endorsement of the use of a “strict scrutiny” standard of review in a wide variety of cases involving content-based laws.
According to Liptak, Dean Post “said the decision was so bold and so sweeping that the Supreme Court could not have thought through its consequences. The decision’s logic, he said, endangered all sorts of laws, including ones that regulate misleading advertising and professional malpractice. ‘Effectively,” he said, ‘this would roll consumer protection back to the 19th century.'”
Mr. Abrams, however, viewed the case through a much different lens. Again, according to Liptak, Abrams viewed the “decision [as] a blockbuster and welcomed its expansion of First Amendment rights. The ruling, he said, ‘provides significantly enhanced protection for free speech while requiring a second look at the constitutionality of aspects of federal and state securities laws, the federal Communications Act, and many others.'”
All Three Yale Justices Endorse Reed Majority Opinion
Three Yalies (Justices Thomas, Alito, and Sotomayor) signed the majority opinion, and two of them (Alito and Sotomayor) also concurred but explained how strict scrutiny would “not prevent cities from regulating signs in a way that fully protects public safety and serves legitimate esthetic objectives.”
Mr. Liptak’s article is yet further evidence of the ever-widening gulf between Mr. Abrams and his Yale professorial counterparts when it comes to the desirability of vindicating claims concerning certain categories of First Amendment cases (see here) (contrast here {Shanor & Post} and here {Abrams}). In several important respects, this division in the liberal community over First Amendment law mirrors a division in the American Civil Liberties Union on many of the same issues (see here, here and here).
→ On October 24th, Mr. Abrams will receive Yale’s Award of Merit, the highest award given by the Law School. “The recipients of the Award are recognized for having made a substantial contribution to public service or to the legal profession.”
→ In 2016 Yale University Press will publish Mr. Abrams’ next book, Why the First Amendment Matters.
→ Next month I will post a column titled “What Does it Mean to Vindicate (or Violate) a First Amendment Right.” That essay speaks to the theoretical and practical implications of the Liberal divide and First Amendment law.
→ Today at 1 p.m. ET the State & Local Legal Center will host a webinar on the Court’s recent decision in Reed v. Town of Gilbert. John M. Baker will discuss the implications of the case for local governments and their sign codes. See here for more info.
→ See also, Tony Mauro, “The Fallout From the Supreme Court’s Sign Ordinance Ruling” National Law Journal, July 29, 2015.
Bopp Returns with New Challenge to Campaign Finance Law
James Bopp, Jr., one of the leading campaign finance lawyers in the nation, is back, this time with a challenge to a Hawaii campaign finance law. The case is Yamada v. Snipes in which a cert. petition has just been filed in the Supreme Court. Below is an excerpt from a press release from Mr. Bopp:
“Hawaii law – rather than requiring constitutional, simple, one-time event-driven reports – requires a large family-owned business to be a state PAC when it spends more than $1000 on newspaper issue ads. A-1 A-Lectrician, Inc., a large, for-profit electrical construction company in Honolulu, filed a appeal in the U.S. Supreme Court challenging the law Friday.”
“Because A-1 engages in advocacy about issues via newspaper ads, Hawaii law requires A-1 to be a political committee. As such, A-1 must bear numerous organizational and administrative burdens – registration, recordkeeping, and extensive, ongoing reporting – which the Supreme Court’s 2010 decision in Citizens United v. FEC held are ‘onerous,’ even though its political spending is less that .2% of its total revenue a year.”
James Bopp, Jr.
“However, the 1976 Supreme Court’s decision in Buckley v. Valeo held that an organization may not be required to be a PAC unless it is under the control of a candidate or has the major purpose of nominating or electing candidates – which A-1 clearly does not.”
“In addition, regardless of whether A-1 is treated like a PAC, A-1 must comply with Hawaii’s burdensome disclaimer law for what Hawaii calls ‘advertisements.’ The advertisement and disclaimer law reach beyond speech expressly advocating the election or defeat of a clearly identified candidate and beyond federal-type electioneering communications, both of which the Supreme Court has held government may regulate with attributions, disclaimers, and non-political-committee, i.e., simple, one-time event-driven reports. Hawaii law however reaches genuine-issue speech, including A-1’s newspaper ads.
“The San Francisco-based Ninth Circuit Court of Appeals upheld the challenged laws, saying that, contrary to Citizens United and Buckley, being a PAC in Hawaii is not onerous and that the major-purpose test does not apply to state law. This decision agrees with some other circuits and disagrees with other.”
“‘Hawaii law respects neither Citizens United nor Buckley,’ said James Bopp, Jr., lead counsel for A-1. ‘State law regulating political speech is not exempt from the US Constitution, but now several federal courts of appeal have said it is. It is time for the Supreme Court to act or the promise of Citizens United that groups may engage in political speech will be meaningless.'”
“A-1 on Friday filed a petition for certiorari asking the Supreme Court to take up this case.”
→ The Ninth Circuit opinion in the case can be found here (3-judge panel: Alex Kozinski, Paul Watford & Raymond Fisher).
→ See also “Out of the dark: Attorney challenges Disclose Act, Commissioner Motl” (“James Bopp, the Indiana attorney who won the landmark Citizens United v. Federal Elections Commission case, interrogated Montana’s top political cop for nearly seven hours last week, comparing Commissioner of Political Practices Jonathan Motl to a racist Southern sheriff and rebuking his crackdown on conservative groups that have been accused of sabotaging elections with mounds of secret cash.”)
Headline: “Appeals court removes block on Latino activist’s First Amendment lawsuit”
This from a news report in the AZdailysun: “Public officials cannot ban people outright from their buildings even if they have caused a disturbance in the past, a federal appeals court ruled Tuesday. In a case with both constitutional and political implications, the 9th U.S. Circuit Court of Appeals said Latino activist Salvador Reza can pursue his civil suit against former state Senate President Russell Pearce. Reza claims Pearce violated his First Amendment rights by declaring he could not return to the Senate after an alleged disturbance in 2011 during a hearing on immigration legislation. And that ban extended even to block his ability to meet with other senators. . . .”
The case: Reza v. Pearce (9th Cir., Aug. 18, 2015) (opinion by Judge Milan D. Smith, Jr., in which Judge Paul J. Watford joined, and a partial concurrence and partial dissent by Judge Clifford Wallace).
→ Excerpt from Majority opinion: “In this § 1983 action, Salvador Reza alleges that Arizona State Senator Russell Pearce violated his constitutional rights when he ordered Reza removed, and barred, from the Arizona Senate building (the Building) at the state capital. Reza contends that Senator Pearce targeted him because of his public criticism of the senator, and because of Reza’s Mexican heritage. Senator Pearce responds that he was justified in barring Reza from the Building because Reza disrupted Senate proceedings, and because he believed Reza would interrupt Senate proceedings in the future. The district court granted summary judgment to Senator Pearce because it concluded that Reza had not alleged a First Amendment violation, and that, therefore, Senator Pearce was entitled to qualified immunity. Reza also alleges that officers Jeff Trapp and John Burton violated his rights under the First and Fourth Amendments by preventing Reza from entering the Building, and ultimately arresting him.”
→ Held: “We reverse the district court’s decision to grant summary judgment to Senator Pearce, and remand for further proceedings consistent with this opinion. Based on our review of the record, we find several disputed issues of material fact that affect our determination of whether Senator Pearce violated Reza’s First Amendment rights. However, when we resolve factual disputes in favor of Reza’s version of events, as required on a motion for summary judgment, we conclude that Senator Pearce’s alleged conduct violated our circuit’s clearly established First Amendment law. We affirm the district court’s rulings regarding officers Trapp and Burton, and its protective order.”
Rick Hasen: “The McCain-Feingold Act May Doom Itself”
That is the title of a new op-ed by Professor Richard Hasen, which appears in August 17th issue of the National Law Journal. Here is an excerpt:
“Did the congressional drafters of the 2002 McCain-Feingold campaign-finance law build within it the seeds for its own destruction?
Professor Richard Hasen
“Tucked within the Bipartisan Campaign Reform Act (the formal name for “McCain-Feingold”) is a provision requiring that certain constitutional challenges to the law be heard by a three-judge court, with direct appeal to the U.S. Supreme Court. This special jurisdictional provision makes it much more likely that within the next few years the Supreme Court will strike limits on the amounts people and entities can contribute to the political parties in so-called party soft money.”
“If the court does so, it would be knocking down the second of McCain-Feingold’s two pillars. The court knocked down the first pillar—the limits on corporate and union spending—in the 2010 case Citizens United v. Federal Election Commission. . . .”
“[I]n a new study I note that of the 29 election law cases the Roberts Court has considered, nearly half (14 of them) came up on mandatory appellate review. In contrast, the court has turned away some major election cases that it could have taken that have come up on certiorari petitions. . . .”
There is more to this fascinating and insightful op-ed, and I urge readers to consider it in its entirety.
→ Coming this January: Richard Hasen, “Plutocrats United: Campaign Money, the Supreme Court, and the Distortion of American Elections (Yale University Press).
Focus of Forthcoming Essay: Artificial Intelligence & First Amendment Theory
Professor Toni Massaro
Professors Toni M. Massaro and Helen L. Norton have a fascinating forthcoming essay ,entitled “Siri-ously?,” coming out in the Northwestern Law Review. Here is an abstract:
“Computers with communicative artificial intelligence are pushing First Amendment theory and doctrine in profound and novel ways. They are becoming increasingly self-directed and corporal in ways that may one day make it difficult to call the communication “ours” versus “theirs.” This, in turn, invites questions about whether the First Amendment ever will (or ever should) protect AI speech or speakers even absent a locatable and accountable human creator.”
Professor Helen Norton
“In this Essay, we explain why current free speech theory and doctrine pose surprisingly few barriers to this counterintuitive result; the elasticity of current theory and doctrine suggests that speaker humanness no longer may be a logically essential part of the First Amendment calculus. We further observe, however, that free speech theory and doctrine provide a basis for regulating, as well as protecting, the speech of nonhuman speakers to serve the interests of their human listeners should strong AI ever evolve to this point. Finally, we note that the futurist implications we describe are possible, but not inevitable. Indeed, contemplating these outcomes for AI speech may inspire rethinking of the free speech theory and doctrine that makes them plausible.”
→ I am working on a book with David Skover on this very topic.
New Article Explores Link Between Copyright & First Amendment
University of Arizona Law Professor Derek Bambauer has a new article entitled “Copyright = Speech,” Emory Law Journal (forthcoming 2015). Here is an abstract of that article:
Professor Derek Bambauer
“Expression eligible for copyright protection should be presumptively treated as speech for First Amendment purposes. Both copyright and the First Amendment share the goal of fostering the creation and dissemination of information. Copyright’s authorship requirement furnishes the key link between the doctrines.”
“The Article examines where the two areas of law align and conflict in offering or denying protection. Using copyright law as a guide for the First Amendment offers three benefits. First, many free speech problems can be clarified when examined through copyright’s lens. Second, this approach makes the seeming puzzle of non-human speakers understandable. Finally, it can help end technological exceptionalism in First Amendment doctrine.”
Campus Free-Speech Watch
Tom Ciesielka, “Las Vegas Pro-Life Student Sues High School for First Amendment Violation,” Christian News Wire, Aug. 13, 2015
Richard Read, “UO rape accuser’s therapist claims school discriminated, retaliated, violated First Amendment,” The Oregonian, Aug. 13, 2015
Wanted: a Kentuckian who champions the First Amendment & transparent government
This from the Scripps Howard First Amendment Center at the University of Kentucky: The Center is “requesting nominations for its annual James Madison Award to recognize a Kentuckian for outstanding service to the First Amendment. The award, created in 2006, honors the nation’s fourth president, whose extraordinary efforts led to the passage and ratification of the Bill of Rights.”
“The Madison Award recognizes someone who has worked in one or more of these areas: open government and open records; promotion of the watchdog role of the press; defense against government or private censorship, or robust debate in the marketplace of ideas.”
“Nominees must have significant ties to Kentucky, and their efforts must have resulted in the preservation or expansion of freedom of the press and/or freedom of speech. Dedication to the First Amendment principle of free expression is not accomplished in a day’s work but rather a lifetime. Thus the award recognizes a long-term commitment to such ideals.”
→ The deadline for nominations is Sept. 11, 2015.
→ Go here for more information.
New & Forthcoming Scholarly Articles
Justin F. Marceau & Alan K. Chen, “Free Speech and Democracy in the Video Age,” SSRN (Aug. 16, 2015)
Erwin Chemerinsky, “The Return of the Jedi: The Progressive October 2014 Term,” The Green Bag (forthcoming 2015)
News, Editorials, Op-eds & Blog Posts
Tom Jackson, “Why do reformers hate the First Amendment?,” Tampa Tribune, Aug. 17, 2015
Gene Policinski, “A free press in ‘time of war’—or at home—is not the enemy,” GazetteXtra, Aug. 17, 2015
Editorial, “‘Ag-gag laws’ have no place under the First Amendment,” Des Moinses Register, Aug. 16, 2015
Justin Haskins, “The Amazing Truth About the Real First Amendment and Why We Should Finally Adopt It,” The Blaze, Aug. 14, 2015
Jill Richardson, “How Corporate Farmers Are Waging War on Our 1st Amendment,” Alternet, Aug. 12, 2015
Eugene Volokh, “First Amendment limits on freedom of information law,” The Volokh Conspiracy, Aug. 11, 2015
The Court’s 2015-2016 First Amendment Docket
Review Granted
Friedrichs v. California Teachers Association, et al.
Pending Petitions*
Center for Competitive Politics v. Harris
Yamada v. Snipes
* 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, #72: “”Megyn Kelly — Bold Defender of Free Speech Freedoms”
Next Scheduled FAN Post #74: Wednesday, August 26, 2015.