Archive | First Amendment

District Court Strikes Down Graphic Tobacco Labeling Requirement

The case is R.J. Reynolds Tobacco Co. v. United States FDA (D.D.C. Feb. 29); the opinion grants plaintiffs summary judgment, for much the same reasons given in November, when the court issued a preliminary injunction.

The FDA had mandated that “the top 50% of the front and back panels of every cigarette package” must include “color images of a man exhaling cigarette smoke through a tracheotomy hole in his throat; a plume of cigarette smoke enveloping an infant receiving a kiss from his or her mother; a pair of diseased lungs next to a pair of healthy lungs; a diseased mouth afflicted with what appears to be cancerous lesions; a man breathing into an oxygen mask; a bare-chested male cadaver lying on a table, and featuring what appears to be post-autopsy chest staples down the middle of his torso; a woman weeping uncontrollably; … a man wearing a t-shirt that features a ‘no smoking’ symbol and the words ‘I QUIT’; … [and] a stylized cartoon … of a premature baby in an incubator.” R.J. Reynolds challenged this as an unconstitutional speech compulsion. And Supreme Court precedents had held that the government generally may not compel people or organizations to convey government-mandated speech, but had provided an exception for some speech on commercial advertising or labeling.

But the court in R.J. Reynolds concluded that this exception to the ban on compelled speech is limited to “purely factual and uncontroversial disclosures” “designed to protect the consumer from confusion or deception, [or] to increase consumer awareness of … risks.” The graphics here, the court concluded, didn’t fall within this exception, but were instead advocacy “crafted to evoke a strong emotional response calculated to provoke the viewer to quit or never start smoking.” [...]

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Recommendations for First Amendment textbook

Next spring semester, I will be teaching a First Amendment class. So I request advice from commenters about what textbooks they liked, or did not like, and why.

For the recommendations, please ignore entirely the textbook’s treatment of the religion clauses. Denver University has a separate class on them, so my class will be entirely on Speech, Press, Petition, Assembly, and Association.

Personally, I prefer textbooks which put their subject in historical context and order, which is one of the reasons I use Randy Barnett’s textbook for Con Law I and Con Law II. Like Barnett, I also prefer textbooks which pay attention to “the Constitution outside the courts,” and not just to Supreme Court cases.

Finally, I like to show students how to use one part of the Constitution to help understand another part. So I would be particularly interested in textbooks that highlight the First Amendment’s interplay with the Copyright clause,  the Fourteenth Amendment, and so on. I will of course give careful study to Eugene Volokh, The First Amendment and Related Statutes, Problems, Cases and Policy Arguments (4th ed.). [...]

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Occupy Wall Street and Popular Constitutionalism

The Occupy Wall Street movement is often seen as a left-wing counterpart to the Tea Party movement. Until recently, however, OWS has differed from the Tea Party in so far as it paid little attention to constitutional issues. By contrast, constitutional issues are a central focus of the Tea Party, which claims that the courts have departed from the original meaning and have allowed the federal government to seize too much power. As I explained in this article, the Tea Party fits the classic model of “popular constitutionalism” – a popular movement that makes constitutional issues a central focus of its agenda. Until now, such issues have been mostly peripheral for OWS.

Today, however, a group inspired by OWS is holding a series of “Occupy the Courts” protests, which do focus on constitutional issues, mostly attacking the Supreme Court’s campaign finance decisions:

The “Occupy” movement will turn its focus on the nation’s highest court Friday as organizers plan to gather around the Supreme Court building dressed like justices and singing songs of the Motown group, The Supremes.

The event is being held around the two-year anniversary of the Supreme Court decision in the case of Citizens United v. Federal Election Commission, which removed many limits to corporate spending in federal political campaigns, organizers say….

The one-day event dubbed “Occupy the Courts” is organized by the grassroots group called Move to Amend and was inspired by the Occupy Wall Street participants, organizers said.

“Move to Amend volunteers across the USA will lead the charge on the judiciary which created — and continues to expand — corporate personhood rights,” the Occupy the Courts website states.

There is some irony in the OWS protestors campaign against “corporate personhood.” OWS gets a great deal of financial and organizational support from labor unions [...]

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Court Reaffirms Ministerial Exception

SCOTUSBlog reports that the Supreme Court has issued its opinion in Hosanna Tabor v EEOC, unanimously reversing the U.S. Court of Appeals for the Sixth Circuit on the question whether the First Amendment precludes employment discrimination suits against religious entities by those in “ministerial” positions.  The Court was unanimous in the judgment.  Chief Justice Roberts wrote the opinion for the Court.  Justice Thomas concurred, and Justice Alito filed a concurring opinion joined by Justice Kagan (!).  I have not yet read the opinion, but I’m certainly curious to see what united Justices Alito and Kagan.  More background on the case can be found here.

Also, FWIW, the Court today also issued another 8-1 opinion in Perry v. New Hampshire. [...]

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The original meaning of the 14th Amendment regarding interracial marriage

Over at Balkinization, Andrew Koppelman (Northwestern) has an interesting and thoughtful post on the state of originalism. Synthesizing analysis by Jamal Greene and Jack Balkin, Koppelman writes, “Originalism is fundamentally about a narrative of rhetorical self-identification with the achievements of a founding historical moment. That is the real basis of its power. An originalist argument will be powerful to the extent that can persuade its audience that it can keep faith with that identification.”

Thus, “Originalist argument is an artifact designed to recall the Constitution’s origin and connect what we are doing now with that origin. Once this functional definition of originalism is understood, it follows that the range of possible original arguments is quite broad. It is not, however, infinite.” So, argues Koppelman, the fact that originalists differ among themselves in many important details about what “originalism” really is, is not a fatal flaw. Simiilarly, there are many different things called “aspirin” (e.g., Excedrin, generic products, St. Joseph’s children’s aspirin, etc.), but they all contain acetylsalicylic acid, and they all have a generally similar function. Which particular one you use at a given time will depend on the particular purposes for which it is needed.

I do want to quibble, though, with one particular legal history claim that Koppelman makes: “Thus originalists struggle with the problem whether the general purpose of the Fourteenth Amendment, to mandate the legal equality of blacks, should trump the framers’ specific intention to permit school segregation and miscegenation laws.”  Michael McConnell and Randy Barnett have written on the school segregation issue, but I’d like to add something on miscegenation. I don’t think that the historical record unambiguously supports the claim of a specific intent in the 14th Amendment to allow the continuation of laws against interracial marriage.

We do know for certain that one [...]

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Me and Kim Kardashian

Because of the press of business at my day job, I’ve had less than usual worth saying recently.  In fact, I haven’t posted in months.

But all that blood, toil, tears, and sweat have at least done some good, because yesterday my work was mentioned alongside news that really matters.  An amicus brief I did for the Cato Institute, Center for Democracy & Technology, Electronic Frontier Foundation, Public Knowledge, and TechFreedom in the upcoming FCC v. Fox Television Stations was mentioned in the Hollywood Reporter yesterday in its Hollywood Docket feature that included a story on Kim Kardashian. 

The brief made paragraphs 1 and 2 of the article; Kim wasn’t mentioned until paragraph 6, and yet somehow she is the one who got the photo that ran in the article.  Harrumph. [...]

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“Harassment” of SSM Opponents in Washington State

Yesterday, in Doe v. Reed, Federal District Judge Benjamin Settle rejected an as-applied challenge on First Amendment grounds to a Washington state law requiring the public disclosure of the names of initiative signers.  The initiative in question would have blocked the legislatively approved recognition of domestic partnerships. (The initiative made it onto the state ballot but lost, the first time voters in a statewide ballot contest supported same-sex partnerships.) A year ago, the Supreme Court rejected, 8-1 (Thomas dissenting), a facial challenge to the same law. 

Judge Settle reviewed the evidence gathered over two-plus years supporting the argument that petition signers had been subjected to threats and harassment. The claims followed a theme developed by anti-SSM activists nationwide. Highlighting such incidents has been part of the ongoing effort to find some “harm” caused by the SSM movement. The evidence in Washington state comprised allegations by initiative supporters, including:

*one supporter received an angry text message from his brother; was “mooned” by someone in a passing car; and was “flipped off” by some people in passing cars;

*one preacher was told by someone that his church would be picketed in an “appropriate” way, although no picket occurred;

*while collecting initiative signatures in a public place, one was glared at by two women who told him, “we have feelings too”;

*several had their pictures taken while in public places;

*some were sent notes containing vulgar language;

*one claimed a death threat was made on a website, but could not identify any such threat on the site, and withdrew the claim.

Other claims involved “bothersome” phone calls, and name-calling using words like “homophobe” and “fascist.” A couple of claims involved alleged physical threats, which were reported to police. There were, however, apparently no prosecutions, much less convictions, for actual threats. There was [...]

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Brown v. EMA casts doubt on the “weapons effect” justification for gun control

The State’s evidence is not compelling. California relies primarily on the research of Dr. Craig Anderson and a few other research psychologists whose studies purport toshow a connection between exposure to violent video games and harmful effects on children. These studies have been rejected by every court to consider them,6 and with good reason: They do not prove that violent video
6See Video Software Dealers Assn. v. Schwarzenegger, 556 F. 3d 950, 963–964 (CA9 2009); Interactive Digital Software Assn. v. St. Louis County, 329 F. 3d 954 (CA8 2003); American Amusement Machine Assn.
v. Kendrick, 244 F. 3d 572, 578–579 (CA7 2001); Entertainment Soft-ware Assn. v. Foti, 451 F. Supp. 2d 823, 832–833 (MD La. 2006); Enter-tainment Software Assn. v. Hatch, 443 F. Supp. 2d 1065, 1070 (Minn. 2006), aff ’d, 519 F. 3d 768 (CA8 2008); Entertainment Software Assn. v. Granholm, 426 F. Supp. 2d 646, 653 (ED Mich. 2006); Entertainment Software Assn. v. Blagojevich, 404 F. Supp. 2d 1051, 1063 (ND Ill. 2005), aff ’d, 469 F. 3d 641 (CA7 2006).
games cause minors to act aggressively (which would at least be a beginning). Instead, “[n]early all of the researchis based on correlation, not evidence of causation, and most of the studies suffer from significant, admitted flaws in methodology.” Video Software Dealers Assn. 556 F. 3d, at 964. They show at best some correlation between expo-sure to violent entertainment and minuscule real-world effects, such as children’s feeling more aggressive or mak-ing louder noises in the few minutes after playing a vio-lent game than after playing a nonviolent game.7
—————— 7One study, for example, found that children who had just finishedplaying violent video games were more likely to fill in the blank letter in “explo_e” with a “d” (so that it reads “explode”) than with an “r” (“explore”). App.
[...]
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Is There a First Amendment Right of Access to Material Witness Proceedings?

Yesterday, in United States v. Brice, the U.S. Court of Appeals for the D.C. Circuit turned away a convicted defendant’s effort to unseal the records of material witness proceedings that were referred to during his sentencing hearing.  Even assuming there was a “qualified” First Amendment right of access to material witness proceedings the Court held that any such right was outweighed by countervailing interests. As Judge Kavanaugh explained in an opinion for the court, “the public was not entitled to the records here,
which contained ‘substantial amounts of material of an especially personal and private nature relating to the medical, educational, and mental health progress’ of the victims.” BLT has more here. [...]

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Breyer’s Dissent in Sorrell and Carolene Products

In Justice Breyer’s dissent in Sorrell v. IMS Health, he cited United States v. Carolene Products, a Fifth Amendment due process case from 1938, for the proposition that “regulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional” if it rests “upon some rational basis within the knowledge and experience of the legislators.” Breyer adds, “To apply a strict First Amendment standard virtually as a matter of course when a court reviews ordinary economic regulatory programs (even if that program has a modest impact upon a firm’s ability to shape a commercial message) would work at cross-purposes with this more basic constitutional approach.”

The obvious problem, not directly addressed by Breyer, is that Carolene Products also states, in famous footnote 4, that “there may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth.” The Court ultimately concluded that it should stringently review legislation coming within the purview of the First Amendment. So it would seem that the lesson of Carolene Products, for the purposes of Sorrell, is that while the rational basis test applies to run-of-the-mill economic legislation, once the First Amendment is implicated heightened scrutiny applies. The Sorrell majority is therefore correct.

Breyer has an implicit response, which is that the core of the First Amendment is the protection of the “marketplace of ideas,” which reflects “the democratic importance of permitting an elected government to implement through effective programs policy choices for which the people’s elected representatives have voted.”

So a little history. The idea that the First Amendment is primarily about supporting the democratic process [...]

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Justice Breyer on Commercial Advertising

Justice Breyer’s dissent today in Sorrell v. IMS Health Inc. led me to do a quick check, and I found that Justice Breyer has never voted for First Amendment protection for commercial advertising in a nonunanimous case. He was in the speech-restrictive 5-4 majorities in Florida Bar v. Went For It, Inc. (1995). He was in the four-Justice dissents in Lorillard Tobacco Co. v. Reilly (2001) and Thompson v. Western States Medical Center (2002), and now a three-Justice dissent in Sorrell. He also joined the least speech-protective opinion in 44 Liquormart, Inc. v. Rhode Island (1996), though his bottom line (striking down the law) was the same as all the other Justices’. And he took a narrow view of the First Amendment right in the compelled funding of advertising cases, Glickman v. Wileman Bros. & Elliott, Inc. (1997), United States v. United Foods, Inc. (2001), and Johanns v. Livestock Marketing Ass’n (2005). (I view those compelled funding cases as quite different from speech restriction cases, but the Court has generally viewed them as quite similar in many ways.)

Justice Breyer strikes me in this respect as much like Justice Rehnquist throughout most of his career; as best I can tell, Justice Rehnquist never voted for First Amendment protection for commercial advertising in a nonunanimous case until Edenfield v. Fane (1993). None of this is to say that Justice Breyer and Justice Rehnquist are wrong of course; I only want to point out Justice Breyer’s view on the subject. Justice Breyer’s fellow Sorrell dissenter Justice Ginsburg, by contrast, has generally taken a much broader view of the First Amendment in commercial advertising cases. (As to the other Sorrell dissenter, Justice Kagan, we just don’t have any data yet besides Sorrell.) [...]

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Restricting Commercial Advertising Because It Might Persuade People

Today’s Sorrell v. IMS Health Inc. is a complicated case; I think the majority (the conservatives plus Justice Sotomayor) is basically right, but I don’t want to focus on the details of this particular case right now. Instead, I want to talk about what this case means to a much broader question having to do with the First Amendment and commercial advertising: May commercial advertising be generally restricted on the grounds that it might persuade people to do something that the government thinks is bad (as opposed to on the grounds that it’s false, or misleading, or improperly intrusive on its listeners, or some such)?

The Court had left this question unresolved for quite some time, but it looks like Sorrell might strengthen the case that the answer is “no” (at least setting aside the special case of speech that urges an unlawful commercial transaction). Let me chart the history of the debate.

1. From 1942 until the mid-1970s, the Supreme Court took the view that commercial advertising is entirely excluded from First Amendment protection. But in Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc. (1976), the Court held that such advertising is generally protected (though less so than other speech). The case involved a ban on price advertising by pharmacies, and the government argued that such price advertising would lead people to go to the lowest-cost pharmacists, who would in turn provide less service; and other pharmacists would likely be lead by competitive pressure to have to similarly provide low cost and less service. But the Court disagreed: Under the First Amendment, speech can’t be restricted because it will persuade people to do something that’s supposedly harmful. “[The choice] between the dangers of suppressing information, and the dangers of its misuse if it is freely [...]

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Elwood Wins

This morning the Supreme Court issued a near-unanimous opinion in Nevada Commission on Ethics v. Carrigan, reversing the Nevada Supreme Court.  Justice Scalia wrote the opinion for the Court.  Justice Kennedy concurred, and Justice Alito wrote a separate opinion concurring-in-part and concurring in the judgment.  The Court held that Nevada’s Ethics in Government Law was not overbroad in violation of the First Amendment and rejected the Nevada Supreme Court’s conclusion that state legislators have a personal First Amendment right to vote on any given matter.

Our own John Elwood represented the Nevada Commission on Ethics before the Court.  Congratulations on a big win! [...]

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Plastic Bag Makers Sue ChicoBag for Exaggerating Environmental Claims

Several manufacturers of disposable plastic bags have filed suit against reusable bag maker ChicoBag for false and misleading claims about the environmental superiority of its reusable bags over disposable bags. The complaint claims that ChicoBag’s advertising and promotional materials violate the federal Lanham Act and the South Carolina Unfair Trade Practices Act. According to the complaining bag makers — Hilex Poly Co., Superbag Co. and Advance Polybag Inc. — they have been harmed by ChicoBag’s exaggerated claims about their products. Among other things, ChicoBag created the “BagMonster” to symbolize the number of disposable bags used by the average American, and has also launched this site about the suit.

There appears to be no dispute that ChicoBag made some incorrect or poorly substantiated claims. A company website acknowledges that it had relied upon some out-of-date sources, and has since updated and documented the claims made on its “Learn the Facts” page and elsewhere. This has not stopped the suit, however. Here’s more from the New York Times, San Francisco Chronicle, and Chico News & Review.

The context of this dispute is a broader debate about the merits of disposable products. ChicoBag may exaggerate the threat posed by the accumulation of solid waste, but there are other environmental (and even economic) reasons one may prefer reusable bags. The ChicoBag itself is a handy little product, even if it won’t save the earth.

As this litigation proceeds it will be interesting to see whether ChicoBag mounts a First Amendment defense. The company’s claims are as much about spreading an environmental message as they are promoting a product — and public debate over such questions would seem to be worth constitutional protection, even if economically motivated claims about a specific product are not. Somewhat ironically, one of the last companies [...]

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Campaign Finance Law Can Be Funny

Steve Simpson and Paul Sherman of the Institute for Justice detail Stephen Colbert’s travails with federal campaign finance law.

Comedy Central funnyman Stephen Colbert, like most of his friends and allies on the left, thinks that last year’s Supreme Court ruling in Citizens United v. FEC is, literally, ridiculous. To make his case that the ruling invites “unlimited corporate money” to dominate politics, Mr. Colbert decided to set up a political action committee (PAC) of his own. So far, though, the joke’s been on him.

UPDATE: Richard Epstein comments here. [...]

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