From The Recorder (Central Connecticut State University):

On October 3, 2008, [John] Wahlberg and two other classmates prepared to give an oral presentation for a Communication 140 class that was required to discuss a “relevant issue in the media”. Wahlberg and his group chose to discuss school violence due to recent events such as the Virginia Tech shootings that occurred in 2007.

Shortly after his professor, Paula Anderson, filed a complaint with the CCSU Police against her student. During the presentation Wahlberg made the point that if students were permitted to conceal carry guns on campus, the violence could have been stopped earlier in many of these cases. He also touched on the controversial idea of free gun zones on college campuses.

That night at work, Wahlberg received a message stating that the campus police “requested his presence”. Upon entering the police station, the officers began to list off firearms that were registered under his name, and questioned him about where he kept them.

They told Wahlberg that they had received a complaint from his professor that his presentation was making students feel “scared and uncomfortable”....

Professor Anderson refused to comment directly on the situation and deferred further comment.

“It is also my responsibility as a teacher to protect the well being of our students, and the campus community at all times,” she wrote in a statement submitted to The Recorder. “As such, when deemed necessary because of any perceived risks, I seek guidance and consultation from the Chair of my Department, the Dean and any relevant University officials.” ...

It's hard to evaluate these stories without knowing more about the details of what the student said and how he said it, especially if the call to the police is just a request to investigate, rather than an outright complaint in the sense of an allegation of a crime being committed. (The story says "complaint," but it's not clear how precisely the term is being used.) If the presentation was indeed simply advocacy of concealed carry, then the police investigation sounds quite heavy-handed, and the professor's worry based on the student's political views on the subject sounds unjustified. If something was said that gives a reasonable person some reason to worry, then some level of inquiry would indeed be sensible. Still, the story seemed worth passing along — please let me know if any of you have more specific information on the subject.

Thanks to Paul Hsieh, who has more thoughts on the subject, for the pointer.

From an NRA letter to the Memphis Commercial Appeal criticizing their decision to publish the names of concealed-carry license holders:

The late Charlton Heston fittingly observed that the essence of Right-to-Carry is that in a world where wolves cannot distinguish between lions and lambs, the whole flock is safer.

There's much I agree with substantively in the letter — but I'd say the "lions and lambs" metaphor doesn't quite do the work its user would like it to do ....

So says the U.S. Court of Appeals for the First Circuit, in Noonan v. Staples, Inc., interpreting Massachusetts law. I'm inclined to agree with David Kravitz (Blue Mass Group) on this, and want to particularly stress this:

Second, the Court seems not to have considered any constitutional implications of its decision. That may well be because the parties did not raise any constitutional issues in their briefs; nonetheless, it's a strange approach for the Court to take. Imposing any kind of liability for disseminating true information strikes me as constitutionally problematic in any circumstances, and I'm surprised that the Court ignored the issue, instead kicking it down the road to the next case. It's all well and good to hew to the standard practice of not considering arguments not raised by the parties, but to willfully turn a blind eye to an obvious constitutional problem seems like, at best, a waste a judicial resources. The constitutional issue will have to be considered sooner or later -- most likely sooner.

In my view, libel liability -- even on statements on matters of private concern -- is premised on the notion that "there is no constitutional value in false statements of fact." If a factual assertion is true, it should generally be fully protected, whether a court labels it as being on a matter of "public concern" or "private concern," and whether the speaker was animated by "malice" in the sense of hostility or ill will or not. Perhaps the speech could still be restricted if it falls into some other First Amendment exception, but the libel exception can't apply unless the statement is false.

Note that conclusions like the First Circuit's are extremely rare in recent decades. The only recent case I can think of that reaches a similar result is the Rhode Island "whore" case.

For my criticisms of the "public concern"/"private concern" distinction, at least outside the narrow contexts of the government as employer and of false statements of fact, see PDF pp. 47-52 of this article. In particular, I think it's far from clear that statements said about a fired employee are indeed matters of purely "private concern." Presumably if a union was trying to persuade members that the employer was wrong to fire an employee, true statements about the circumstances of the firing would be seen as fully protected speech. I would think the same would be true when an employer is making true statements in trying to persuade employees that it was right to fire someone, and trying to warn the employees against engaging in similarly dishonest behavior. But in any case, for reasons I argue in this article, I think courts ought not be drawing this line, at least where true statements are concerned.

A Tennessee legislator has proposed a statute that would outlaw the publication of gun carry permit records:

(x) Any information or other records regarding an applicant or permit holder may be released to a law enforcement agency for the purpose of conducting an investigation or prosecution, or for determining the validity of a permit, but shall not be publicly disclosed except as evidence in a criminal proceeding.

(y)(1) Except as provided for in subsection (x), it is an offense for a person, other than the applicant or permit holder, to knowingly publish in any form any information or records described in subsection (w) or information concerning the validity of any permit.

(2) A violation of this subsection (y) is a Class A misdemeanor punishable by fine only.

Nothing in the First Amendment stops states from keeping these sorts of records private. That, for instance, is the norm with regard to income tax records, to psychiatric and medical records kept by government-run hospitals, and a good deal of other data. And the government may criminalize government officials' leaking of the records, as the federal government has done for income tax records.

But once the data is placed in the public record and then copied by private parties -- which is what happened in Tennessee, prompting this proposal -- the First Amendment protects people's right to redistribute it. Florida Star v. B.J.F., a case involving the inadvertent release of a rape victim's name, so holds; and if this is so as to data that was inadvertently released by the government, it would surely apply to data that was deliberately released, even pursuant to a policy that was later changed. So the law could bar the release of new license records, but it can't bar the continuing distribution of old license records by those who have already copied them.

Thanks to and Michael Silence for the pointer.

From Goedert v. City of Ferndale, 2008 WL 928315 (E.D. Mich.), a case decided last year, but just posted on Westlaw — a fun fact pattern, and one that rarely leads to First Amendment litigation. I offer the opinion as an interesting bit of First Amendment analysis for First Amendment buffs; I leave it to you to figure out whether and to what extent you think this is right.

Plaintiffs challenge the City of Ferndale's suppression of automobile horns as a form of expression. The City has enforced an ordinance to prohibit the display of signs asking motorists to "honk" their horns to express their support for the demonstrators, and prohibiting motorists from honking their horns for that purpose. Plaintiffs allege that the City's prohibition violates the First Amendment's guarantee of freedom of speech.

In support for peace in Iraq, Plaintiffs Nancy Goedert, Victor Kittila, and Jim Grimm have participated in a Vigil on the corner of Woodward Avenue and Nine Mile Road in the City of Ferndale on Monday evenings. The Vigil has been conducted at that location for nearly five years. At one point, Vigil participants began to display signs stating "Honk for Peace" and later "Honk if You Want Bush Out." Over the years, hundreds of motorists have communicated their agreement with the demonstrators by honking their horns as they passed by the Vigil. Plaintiffs characterize the honks in support of the Vigil as citizens electing to join in a conversation among the citizens on perhaps the most pressing public issue of the day.

For the first three and a half years of the Vigil, there were no traffic problems or accidents associated with the Vigil. Ferndale changed its approach towards the Vigil in June of 2006, when Police Captain Timothy Collins witnessed the same intersection crowded with health care reform demonstrators. Demonstrators were on every corner of the intersection, the sidewalks, and alongside the median. A concerned Captain Collins felt that the demonstrators were unruly and were causing a safety hazard by leaning into traffic with their signs, and he felt that the honking of vehicle horns was a distraction that could lead to safety problems. The next morning, Captain Collins discovered a Michigan Statute, M.C.L. 257.706(a), which provides that "the driver of a motor vehicle shall when reasonably necessary to insure safe operation give audible warning with his horn but shall not otherwise use the horn when upon a highway." This "Honk Statute," like the rest of Michigan's Motor Vehicle Code, has been incorporated into Ferndale's ordinances....

Captain Collins then contacted the City Attorney's Office to ascertain whether both statutes could be enforced against the demonstrators. The City Attorney's Office approved the enforcement of the statutes against those at the Vigil, and the decision to apply them to ban the use of the word "honk" on any signs at the Vigil. After receiving a warning from the Ferndale police department, Plaintiff Kittila revised his sign to read "Ferndale Cops Say: Don't HONK if you want BUSH OUT." Plaintiff Nancy Goedert was holding a similar sign that read "POLICE SAY DON'T HONK for PEACE." On July 3, 2006 Plaintiff Kittila was arrested for holding his sign, while two weeks later, on July 17, 2007 Nancy Goebert was ticketed by the City for violation of the "Honk Statute ." On October 9, 2006, Officer Carroll stopped and ticketed a motorist who honked in support of the Vigil, Plaintiff Brian Price....

(Show the rest of the opinion.)

Ferndale claims that the honk signs are not protected speech because the signs were directed at inciting the lawless action of non-traffic hazard warning related honking. The City relies principally on Brandenburg v. Ohio, 395 U.S. 444 (1969). In that case, Brandenburg, a member of the Ku Klux Klan, spoke at a rally where he advocated violence to further the white-supremacist goals of the Klan. Brandenburg was convicted under Ohio's Criminal Sydicalism Statute, which barred advocating or teaching violence as a means of accomplishing social change as well as assembling with others for that purpose. Id. Later decisions of the Supreme Court, however, have "fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."

It is unclear if Brandenburg may be so narrowly read to include only incitement to violence, as Plaintiff suggests. However, the present case does not seem to be within its scope. Violation of the "honk ordinance" in question in this case is a mere civil infraction, hardly the same kind of "lawlessness" addressed in Brandenburg.... Brandenburg's scope does not cover the honk signs in this case, nor does it defeat the protestors' claims that the holding of the signs is protected speech.

While Defendant Ferndale claims that the sounding of a horn is incapable of being speech, the honks nevertheless convey a particularized message that is understood by those who hear it. In fact, the Ferndale police ticket the motorists purely based upon exactly that, the "particularized message" the motorist is trying to convey. Motorist Brian Price was ticketed by Officer Carroll for the message he tried to convey through use of his horn. For Ferndale to now claim that a honk is simply a honk, incapable of conveying speech is disingenuous. If a honk is incapable of conveying speech, then Ferndale would not be able to discern which honks are unlawful under their "Honk Statute," making the ordinance impossible to apply to motorists. Ferndale's application of the statute, however, is evidence of the ability of the vehicle's horns to convey speech. The "Honk Statute," as written, provides for an inference that a honk may convey speech, that of "warning." ...

Plaintiff argues that Woodward and 9 Mile is properly characterized as a traditional public forum for First Amendment Analysis. The right of the government to limit expressive activity is limited in places that have been traditionally devoted to assembly and debate. A street has been consistently held to be a public forum. "At one end of the spectrum are streets and parks which 'have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.'" Sidewalks are also traditional public forums for purposes of First Amendment protection.

Woodward and 9 Mile is in the heart of downtown Ferndale. It is one of the busiest intersections in Ferndale, second only to Woodward and Eight Mile in the volume of traffic. There is typically significant traffic noise during the time of the Vigil. The intersection of 9 Mile and Woodward is properly characterized as a public forum for a First Amendment analysis.

Plaintiff claims Ferndale's "Honk Statute" is a content based restriction, while Defendant claims the statute is content neutral. To determine whether a restriction is content-based, the courts look at whether it "restrict(s) expression because of its message, its ideas, its subject matter, or its content." The Ordinance is content-based as any message, other than a warning, delivered by the "honk" sign or horn honking violates the Ordinance. A sign simply encouraging peace in Iraq would not be an issue, while a sign encouraging motorists to honk for peace in Iraq would violate the ordinance. Signs with the word "honk" contained in it are treated differently than other signs, and, therefore, the regulation is content-based.

In this case, honking a vehicle's horn is not banned completely, only the honking for reasons other than traffic warning is deemed unlawful. The content of the message contained within the honk must be determined by the police before issuing citations, therefore the regulation, as applied to the honking motorists, may also be properly classified as a content-based policy....

Having determined that the signs encouraging the honking of vehicle horns, as well as the honking of the horns are speech, and that the City of Ferndale's regulation of the two are content based, Ferndale must "show that (its ordinance) is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end." Ferndale must satisfy the test for both, the regulation of the display of honk signs, as well as the regulation of non-traffic related honking.

E. The City of Ferndale's Purported Interests in Regulating Horn Honking

1. Safety

The City must come forward with evidence showing that honking a vehicle horn other than to convey a warning causes a safety hazard. "The government has the burden of showing that there is evidence supporting its proffered justification." "Mere speculation of harm does not constitute a compelling state interest."

Even if the City's interest in promoting the safety of its citizens is a compelling state interest, Ferndale has not shown that the honk ordinance is "necessary" to achieve that interest. The burden is on the City of Ferndale, and the City has not come forward with any evidence correlating a single honk expressing support for a demonstration with safety problems. The Vigil began nearly five years ago, and thousands of expressive honks have been made in support. Not a single accident has occurred as a result of the Vigil. Ferndale has not provided a single study or report showing that horn-honking or holding "honk" signs causes traffic safety problems.

It is important to note that the conditions surrounding the health care rally that led to the initial concern of the Ferndale Police Department involved protestors on all four street corners, the sidewalks, and the median at Woodward and 9 Mile. Some of the health care demonstrators were even reaching into traffic. The noise of the honks was much greater than any honking Captain Collins had heard at the Vigil. It is clear that the safety concerns implicated by the health care rally are of a different kind than that found at the peace Vigils.

2. Excessive Noise

Ferndale's ban on "honk" signs and the honking at the Vigil cannot be justified on the ground that it prevents "excessive" noise. Horn honking is consistent with the normal noise level of Woodward and 9 Mile Road during rush hour of a week day, or busy weekend shopping day, as it is in the heart of downtown Ferndale. The intersection and adjacent streets are the sites of many boisterous organized events, such as the Woodward Dream Cruise [footnote: The Woodward Dream Cruise is "the world's largest one-day celebration of car culture," attracting more than 1 million visitors and "more than 40,000 muscle cars, street rods, custom, collector and special interest vehicles."] and the Gay Pride Fest, where music on bandstands blare across the streets. The Dream Cruise, an event heavily promoted by Ferndale, generates widespread complaints from Ferndale citizens. Numerous noisy night clubs and restaurants are also located in the area of the intersection.

Assuming arguendo that noise regulation may be deemed a "compelling state interest," the City of Ferndale has not produced evidence that the honk regulation is "necessary" to limit the noise. While a Vigil held at midnight on a subdivision street that encouraged horn honking would seem to clearly be excessive noise for the circumstance, scattered honks on a busy intersection during rush hour do not rise to the level of "excessive." The maximum level for a residential/commercial area between 7:00 a.m. and 10:00 p.m., which would apply to the Vigil, is 75 decibels. Ferndale Code § 2-100(a). Sound levels are to be determined by a sound meter. Ferndale Code § 2-101. Ferndale has never measured the decibel level at the Vigil with a sound meter, and has failed to determine if the horn-honking there has exceeded the permissible level. Ferndale has simply failed to provide any meaningful support for their position that banning individual honks during rush hour on 9 Mile and Woodward is necessary to serve its interest in noise reduction.

F. Narrow Tailoring of Policy

Ferndale has not adopted the least restrictive means of preventing excessive noise, or alleviating safety concerns. A single honk violates Ferndale's regulation, and, as explained above, Ferndale has not offered evidence that a single honk can be classified as excessive noise, or as contributing to traffic concerns.

Captain Collins' concern initially grew out of observing a health care rally, which involved more people than the normal attendance of the Vigil. While this Court understands that the City of Ferndale has a legitimate interest in preventing such "hornet's nests" of noise from occurring, the prohibition of individual honks does not pass the "narrow tailoring" prong of First Amendment inquiry.

An example for how a narrowly tailored honk ordinance would look like may be found in Ferndale's own noise ordinance, which confines prohibited noise to any "excessive or unnecessary loud noise of a high volume or intensity which is clearly audible and which disturbs, annoys, or endangers the calm, comfort, quiet, repose, health, peace or safety of others beyond the immediate vicinity of the disturbance." Ferndale Code of Ordinances § 2-98. The Noise Ordinance also specifies the maximum permissible sound levels at 75 decibels. Ferndale is free to determine whichever means they would choose, however, there must be narrow tailoring of the regulation to the compelling state interest in order to survive First Amendment scrutiny.

The City of Ferndale selectively enforces the application of the "Honk Statute." Ferndale permits non-traffic related expressive horn-honking throughout the year for several events. For example, celebratory honking is tolerated following certain sporting events, the annual "dream cruise" event, as well as after weddings. Ferndale's willingness to grant exemptions for such events permits the inference that they may grant exemptions for other events, such as the peace Vigil....

For the reasons stated above, The City of Ferndale has failed to show that application of its "Honk Statute" to the Vigilers is necessary to serve any articulated compelling state interest. Ferndale has also failed to satisfy the narrow tailoring prong of First Amendment content-based restriction on speech scrutiny.

(Hide most of the above text.)

North Carolina law now bans "Communicating libelous matter to newspapers":

If any person shall state, deliver or transmit by any means whatever, to the manager, editor, publisher or reporter of any newspaper or periodical for publication therein any false and libelous statement concerning any person or corporation, and thereby secure the publication of the same, he shall be guilty of a Class 2 misdemeanor.

§ 14‑47.1. Communicating libelous or slanderous material through an electronic medium.
(a) Definition. – The following definitions apply to this section:
(1) Communicate. – The term includes publishing, speaking, uttering, or conveying by words, acts, or in any other manner of a libel or slander.
(2) Electronic medium. – The Internet and any computerized or electronic information service. The term includes a bulletin board, a network, an online service, electronic mail, a forum, a blog, or a news group.
(b) Offense. – It is unlawful for any person to communicate by transmission through an electronic medium any false, defamatory statement that is libelous or slanderous.
(c) Penalty. – A person convicted of an offense under this section is guilty of a Class 2 misdemeanor.
(d) Jurisdiction. – The offense is committed in the State for purposes of determining jurisdiction, if the transmission that constitutes the offense either originates in the State or is received or viewed in the State.

§ 99‑10. Libel and slander transmitted through an electronic medium.
(a) Definition. – The following definitions apply to this section:
(1) Communicate or communication. – The terms include the publication, speaking, utterance, or conveyance by words, acts, or any other manner of a libel or slander.
(2) Electronic medium. – The Internet and any computerized or electronic information service. The term includes a bulletin board, a network, an online service, electronic mail, a forum, a blog, or a news group.
(b) Request for Apology and Correction Required Before Bringing Civil or Criminal Action. – Before any action, either civil or criminal, is brought for transmitting a communication of any libelous or slanderous material through any electronic medium, the plaintiff or prosecutor shall first give the person alleged to be responsible for communicating the libelous or slanderous material at least five days to correct the libelous or slanderous material. The plaintiff or prosecutor shall request that the person alleged to be responsible for communicating the libelous or slanderous material post an apology and correct the material as provided by subsection (c) of this section. A request may be made by mailing or delivering a written request to the person alleged to be responsible for communicating the libelous or slanderous material or by placing the request at one of the locations in the electronic medium known to the plaintiff or prosecutor where the libelous or slanderous material was placed.
(c) Apology and Correction of Libelous or Slanderous Material. – To correct the libelous or slanderous material, the person alleged to be responsible for communicating the libelous or slanderous material shall, within 10 days after receiving the request as provided by subsection (b) of this section, place an apology and correction in the same location in the electronic medium as the libelous or slanderous material was placed. The person alleged to be responsible for communicating the libelous or slanderous material shall maintain the apology and correction at that location for a period similar to the time that the libelous or slanderous material was at that location, to the extent that the person can control the location and period of that placement.
(d) Effect of Communication in Good Faith and Retraction. – If at trial it appears that the material was communicated in good faith, that the falsity of the material was due to an honest mistake of the facts, that the material was communicated without prior knowledge or approval of the person who administers the facilities for the electronic medium or, if with prior knowledge or approval, that there were reasonable grounds for believing that the communications were true, and that within 10 days after the request for an apology and correction a full and fair correction, apology, and retraction were added to the proper location in the electronic medium in a position and type as prominent as the alleged libelous or slanderous material, then:
(1) If the action is a civil action, the plaintiff shall recover only actual damages.
(2) If the action is a criminal proceeding on which a verdict of guilty is rendered, then notwithstanding G.S. 15A‑1340.23, the defendant shall be fined a penny and costs, and no more.
(e) Negligence in Permitting Defamatory Communications by Others Essential to Liability of Person Administering Electronic Medium. – The person who administers or provides facilities for the electronic medium involved in the alleged libel or slander shall not be held liable for the alleged libel or slander unless the person is guilty of negligence either in allowing the material to be placed in the electronic medium or in allowing the material to remain in the electronic medium after the person became aware that the material was false and defamatory.
(f) This section shall not apply to anonymous communications.

I don't support criminal libel laws, but I should note that the Supreme Court has never held that they are unconstitutional, and the Court's precedents suggest that criminal punishment of libel — like criminal punishment of obscenity, incitement, and other unprotected categories of speech — is constitutional, so long as the government proves, beyond a reasonable doubt, that (1) the statement was a false factual assertion, and (2) that the defendant knew it was false, or was reckless about whether it was false, with recklessness being defined as subjectively knowing that there was a grave chance it was false. (This at least would be the rule for statements on matters of public concern.)

The Court's most recent decision about this, Garrison v. Louisiana (1964), basically required this sort of proof, but did not go further and suggest that all criminal libel laws are per se impermissible. Criminal libel prosecutions these days are very rare, but not unheard of.

Is the proposed law consistent with the First Amendment rule I set out above, and in particular with the knowledge/recklessness of falsehood prong? On the one hand, "libel" could well be read to incorporate the constitutional definition of the term. On the other, § 99‑10(d) expressly contemplates punishment even for good-faith mistakes — facially nominal punishment, but one that presumably would go on one's criminal record as a misdemeanor. I suspect that courts would try to save as much of the statute as possible by throwing out the provisions that authorize punishment for good faith mistakes but reading the rest as limited to the knowingly/recklessly false statements.

The negligence-based intermediary liability in § 99‑10(e) would not be permissible, however, because it would likely be preempted by 47 U.S.C. § 230. (Also, in criminal cases involving speech on matters of public concern, such liability would be unconstitutional when based only on negligence.)

This News & Observer blog asserts that the sponsor said "that he intended the bill to focus on civil cases and not criminal law. He said the inclusion of criminal penalties was 'an oversight.'" That's an odd oversight, given the text quoted above.

Thanks to Eric David for the pointer.

and The Associated Press.

I agree that the hot news misappropriation tort (described here, with a link to the opinion) should be interred, among other things on First Amendment grounds. To the extent the "hot news"-infringing publication also constitutes copyright infringement, copyright law is quite adequate. To the extent that the publication is not copyright infringement, then it must be either copying ideas and facts (rather than copyright-protected expression) or must be fair use -- and both of those should be seen as constitutionally protected, because they're outside the copyright exception to First Amendment protection.

Nor is this just a matter of First Amendment formalism (much as I like First Amendment formalism): No-one should have a monopoly, even a brief one, in the facts that they have uncovered, precisely because such a monopoly limits others' ability to discuss them, evaluate them, recheck them, controvert them, and broadcast their importance. All Headline News (the entity involved in the case to which Patterico refers) might not be a particularly appealing defendant, and might in fact be guilty of copyright infringement. But the logic of the hot news misappropriation tort is hardly limited to them.

A commenter faults my quoting Blackstone's "The falsehood of it may aggravate it’s guilt, and enhance it’s punishment":

"it’s" = "its" in standard English, and also in the original, according to Google Books.

Many people do take the view that modern standard English is Good Old English, and that usages that are seen as erroneous today are some modern inventions. (I don't know if that's the commenter's general view, but I have heard many people express such arguments.) But while "it's" as a possessive of "it" is indeed not standard in edited English prose today -- perhaps it will be one day, but to my knowledge it's not so right now -- it appears to have been standard in the past. The Blackstone quote is one example, but the OED offers several others, including from Shakespeare; the latest such source the OED gives is 1802, which suggests that the usage was pretty standard at least until then.

But what about the commenter's assertion that the original actually says "its"? The trouble is that the source the commenter cites is actually not the original. I looked up the original 1769 Oxford edition in Eighteenth Century Collections Online (the Commentaries were published starting with 1765, but volume 4 has a publication date of 1769), and it says "it's." So don't assume that what would be generally seen as an error today would also have been seen as an error in the 1760s, and don't let this assumption fool you into treating early 1900s editions as authoritative about the "original" spelling.

The Institute for Justice -- one of the nation's top libertarian law firms -- has some short videos out on their favorite constitutional law cases. IJ has long been first-rate not just at litigating their cases, but at using them to promote libertarian legal ideas to the public, so these should be much worth watching (and forwarding). Here are IJ's quick summaries, with links:

1. The Little Pink House & Property Rights: ... Susette Kelo in her historic fight against eminent domain for private gain.

2. Economic Liberty & the 14th Amendment: Should it take seven years and a team of lawyers to open as small business? That is the reality, so long as courts ignore the Privileges or Immunities Clause of the 14th Amendment.

3. Footloose in Arizona -- A Funny Look at Petty Government Actions: Can you imagine a government threatening fines of $500,000 on a small business for allowing patrons to dance outdoors? Enjoy this fun animated take on the Saga of San Tan Flat.

4. School Choice: Should Only the Government Get to Pick Your Kids’ School? Andrea Weck from Arizona is like millions of parents nationwide; she wants to get her children the best education possible, but finds some people think that only the government —- and not parents -— should select the schools children attend.

5. Free Speech & Campaign Finance Restrictions: Does the First Amendment protect the right to free speech? Not always. Today, campaign finance laws are being used to stifle political speech and participation.

6. Eminent Domain for Private Gain in New Jersey: Does the 5th Amendment protect private property rights? Lori Vendetti [talks] ... about eminent domain in her ocean-front town of Long Branch, N.J.

For more information on any of the cases related to these videos, visit http://www.ij.org/cases.

From the Deltona (Florida) City Commission After Action Agenda (Feb. 16, 2009):

After discussion, the Commission voted 4 to 3 (Commissioner Denizac, Commissioner McFall-Conte, and Commissioner Zischkau voted against the motion) for the City to provide reimbursement and expenditures of legal fees to protect both proactively and reactively the City as a government including its employees and its Mayor and those members who wish to be represented in the this motion, Commissioner Treusch, Commissioner Deyette, Vice Mayor Carmolingo and Mayor Mulder where needed from material damages, slanderous or libelous comments or claims and unsubstantiated allegations past, present and future where the Mayor feels is needed and that a report of fees expended be made available to the public so they may see the extent of damage that has been caused.

Here's audio of the Mayor's presentation in favor of the resolution. The proposal was apparently triggered by online criticism of various city officials.

Libel lawsuits by government officials are of course constitutionally permitted, and may prevail if the statements are found to be false and defamatory factual assertions, and the speaker is found to have known the statements were false or to have known that the statements were likely false. There's no First Amendment rule that would bar government agencies from funding such lawsuits. And there's a plausible argument that the lawsuits serve city interests (and thus justify reimbursement) and not just private interests, since libels of city officials may indeed interfere with the effectiveness of city government, and since city officials may have been victimized by the libels -- if they are libels -- because of their government service.

At the same time, this strike me as a bad idea, especially since the city doesn't offer to fund the defense of such libel lawsuits, even though defense of the lawsuits -- especially a successful defense -- may also serve government interests: Speech that accurately criticizes city officials serves city interests, too, by alerting the public to possible malfeasance by government officials. And defending such speech against unfounded libel lawsuits would likewise city interests, by minimizing the deterrence of such speech. (I do not read Florida's limited anti-SLAPP statute as already providing such reimbursement to successful defendants.)

The government's entering the debate, using city funds, in favor of city officials and against citizens who criticize those officials, thus seems to me to be misguided. And one site that is critical of officials argues that it violates the city charter:

(a) Compensation. The Mayor and members of the City Commission shall receive annual compensation, payable bi-weekly, equivalent to average annual salary of the Mayor and Commissioners in the cities within Volusia County. Said compensation shall not include benefits, except medical benefits under the City's group health insurance plan, the premium costs of which shall be fully paid by the members of Commission who elect coverage. Said compensation shall be identified as a line item within the annual budget and shall be automatically adjusted every two years coincident with adoption of the annual budget.

(b) Expenses. The Commission may provide for reimbursement of actual expenses incurred by its members while performing their official duties.

A commenter asks, apropos the Sedition Act post, what the common law of seditious libel was. Here's what Sir William Blackstone's immensely influential Commentaries on the Laws of England (published 1765-69) said, though note that there was controversy in early republican America as to (1) whether this was an accurate statement of historical English law, (2) whether in any event this law survived the shift to a republican form of government, and (3) whether the federal government (as opposed to state governments) could prosecute common law crimes without express statutory authorization:

[Libels], taken in their largest and most extensive sense, signify any writings, pictures, or the like, of an immoral or illegal tendency; but, in the sense under which we are now to consider them, are malicious defamations of any person, and especially a magistrate, made public by either printing, writing, signs, or pictures, in order to provoke him to wrath, or expose him to public hatred, contempt, and ridicule.

The direct tendency of these libels is the breach of the public peace, by stirring up the objects of them to revenge, and perhaps to bloodshed. The communication of a libel to any one person is a publication in the eye of the law: and therefore the sending an abusive private letter to a man is as much a libel as if it were openly printed, for it equally tends to a breach of the peace.

For the same reason it is immaterial with respect to the essence of a libel, whether the matter of it be true or false; since the provocation, and not the falsity, is the thing to be punished criminally: though, doubtless, the falsehood of it may aggravate it’s guilt, and enhance it’s punishment. In a civil action, we may remember, a libel must appear to be false, as well as scandalous; for, if the charge be true, the plaintiff has received no private injury, and has no ground to demand a compensation for himself, whatever offence it may be against the public peace: and therefore, upon a civil action, the truth of the accusation may be pleaded in bar of the suit. But, in a criminal prosecution, the tendency which all libels have to create animosities, and to disturb the public peace, is the sole consideration of the law. And therefore, in such prosecutions, the only facts to be considered are, first, the making or publishing of the book or writing; and secondly, whether the matter be criminal: and, if both these points are against the defendant, the offence against the public is complete.

The punishment of such libellers, for either making, repeating, printing, or publishing the libel, is fine, and such corporal punishment as the court in their discretion shall inflict; regarding the quantity of the offence, and the quality of the offender....

In this, and the other instances which we have lately considered, where blasphemous, immoral, treasonable, schismatical, seditious, or scandalous libels are punished by the English law, some with a greater, others with a less degree of severity; the liberty of the press, properly understood, is by no means infringed or violated. The liberty of the press is indeed essential to the nature of a free state: but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public: to forbid this, is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequence of his own temerity.

To subject the press to the restrictive power of a licenser, as was formerly done, both before and since the revolution, is to subject all freedom of sentiment to the prejudices of one man, and make him the arbitrary and infallible judge of all controverted points in learning, religion, and government. But to punish (as the law does at present) any dangerous or offensive writings, which, when published, shall on a fair and impartial trial be adjudged of a pernicious tendency, is necessary for the preservation of peace and good order, of government and religion, the only solid foundations of civil liberty. Thus the will of individuals is still left free; the abuse only of that free will is the object of legal punishment.

Neither is any restraint hereby laid upon freedom of thought or enquiry: liberty of private sentiment is still left; the disseminating, or making public, of bad sentiments, destructive of the ends of society, is the crime which society corrects. A man (says a fine writer on this subject) may be allowed to keep poisons in his closet, but not publicly to vend them as cordials. And to this we may add, that the only plausible argument heretofore used for restraining the just freedom of the press, “that it was necessary to prevent the daily abuse of it,” will entirely lose it’s force, when it is shewn (by a seasonable exertion of the laws) that the press cannot be abused to any bad purpose, without incurring a suitable punishment: whereas it never can be used to any good one, when under the control of an inspector. So true will it be found, that to censure the licentiousness, is to maintain the liberty, of the press.

Salazar v. Buono, which the Court agreed to hear today, involves a relatively unusual fact pattern (quoting the federal government's statement of the Question Presented in its petition for review):

More than 70 years ago, the Veterans of Foreign Wars (VFW) erected a cross as a memorial to fallen service members in a remote area within what is now a federal preserve. After the district court held that the presence of the cross on federal land violated the Establishment Clause and the court permanently enjoined the government from permitting the display of the cross, Congress enacted legislation directing the Department of the Interior to transfer an acre of land including the cross to the VFW in exchange for a parcel of equal value. The district court then permanently enjoined the government from implementing that Act of Congress, and the court of appeals affirmed. The questions presented are:

1. Whether respondent has standing to maintain this action where he has no objection to the public display of a cross, but instead is offended that the public land on which the cross is located is not also an open forum on which other persons might display other symbols.

2. Whether, even assuming respondent has standing, the court of appeals erred in refusing to give effect to the Act of Congress providing for the transfer of the land to private hands.

But resolving this question may well lead the Court to reconsider the deeper constitutional question -- should the Establishment Clause be read as presumptively barring government speech that endorses religion? My guess is that there are now 5 votes on the Court rejecting the endorsement test: Justices Scalia, Kennedy, and Thomas, who have criticized the test in the past, and Chief Justice Roberts and Justice Alito, who I suspect (based on the jurisprudential camp from which they come) would agree with the other conservatives.

To be sure, there are other ways the Court could avoid the problem; it can conclude that:

1. Respondent (Buono, who successfully challenged the cross) doesn't have standing, for the reasons the government gives.

2. Respondent doesn't have standing, because simply being exposed to religious speech -- even if it violates the Establishment Clause -- isn't enough of an injury to allow standing. (This would have the effect of rejecting most challenges to government religious speech, but would leave government officials presumably still honor-bound by the existing substantive precedents, and would leave those precedents enforceable as a matter of federal constitutional law in those states that have more relaxed standing requirements.)

3. Even if there was an Establishment Clause problem when the government maintained the cross, privatizing the cross -- even in a way that's pretty clearly structured to preserve the cross on a little island of private property on government land -- avoids any such problem.

4. Even if the Establishment Clause prohibits speech that a well-informed observer would see as endorsing religion (that's the standard articulation of the endorsement test), a well-informed observer would see the cross here as a war memorial, not an endorsement of religion.

There is also another possible problem for the Court: Given that the memorial is a cross, then if it is seen as a religious symbol (i.e., if theory 4 noted above isn't accepted), it would presumably be seen as a symbol for Christianity as such. And some language in Justice Scalia's opinion in McCreary County v. ACLU suggests that Christian-only symbolism might be unconstitutional even though a more ecumenical (Christianity/Judaism/Islam-friendly) "acknowledgment of a single Creator" should be permissible. (See here for more on Justice Scalia's argument in McCreary.)

Nonetheless, it's also possible that five of the Justices might conclude that the underlying problem is the endorsement test, that the test is not only mistaken on the merits but is also too indeterminate to be reliably administered, and that the Court should provide lower courts and government officials clearer guidance for a wide range of cases by concluding that government speech isn't made unconstitutional by its endorsement of religion. Such provision of guidance for future cases is an important part of the Court's function, and the endorsement test's critics have long argued that the Court's adoption of that test has been a failure on that score. In any case, should be quite a case to watch (unless the Court decides the major issue in Pleasant Grove City v. Summum, which I doubt, given the posture of that case).

The Sedition Act of 1798 famously expired on March 3, 1801, and purported to punish false and malicious statements about the Federalist President John Adams and the majority-Federalist Congress, not about the Democratic-Republican Vice-President Thomas Jefferson. This is often mentioned as evidence of the Federalists' partisanship in enacting the Act.

But what I hadn't known until a few days ago is that the Federalists tried to reenact the Act in early 1801, when it would have outlawed criticism of the newly-elected Democratic-Republican President and Congress. The bill was defeated in the House by a 53-49 vote; nearly all Federalists voted for it, and all Republicans voted against it. The four Federalists who voted against consisted of one (George Dent) who voted against the 1798 Act, two who weren't in the House for the 1798 Act vote, and one who was in the House in 1798 but didn't vote.

The Federalists' stated arguments seemed to chiefly be (1) malicious falsehoods about the government are dangerous and valueless and deserve to be suppressed, (2) the Sedition Act had actually been enforced properly, and thus merited renewal, and (3) the Act protects speech by limiting common-law seditious libel to falsehoods, and by fixing a modest penalty for seditious libel. There might have been some political posturing there, and perhaps the Federalists thought they had to do this to prevent charges of hypocrisy. They might also have thought they had little to lose from the renewal, given the expectation that the new Administration would not enforce the law, given its militant hostility to the law in the past. Still, it struck me as worth noting; perhaps it's well-known to others, but it wasn't known to me.