Archive | Freedom of Speech

Prison for Blasphemy

The Guardian (UK) reports:

A man who created a Facebook page poking fun at a revered Greek Orthodox monk has been sentenced to 10 months in prison in Greece after being found guilty of blasphemy…. Filippos Loizos, 28, … used a play on words to portray Father Paisios as a traditional pasta-based dish [pastitsio -EV] ….

Father Paisios, who was revered for his spiritual teachings and was said by some believers to have powers of prophecy, died in 1994.

Loizos had appealed against the ruling and would not be jailed before his case was heard by a higher court, Kleftodimos said.

Here’s what seems to be a copy of the Facebook page:

A reminder that blasphemy prosecutions are, unfortunately, not entirely a thing of the past in Europe. Thanks to Bill Poser for the pointer. […]

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Federal Ban on Lobbyists’ Service on Advisory Committees May Violate the First Amendment

[UPDATE: Whoops, Jonathan beat me to it; I’m turning off comments, so people can post on that thread instead.]

So holds Autor v. Pritzker (D.C. Cir. Jan. 17, 2014), a very interesting D.C. Circuit decision just handed down today. (Congratulates to my Mayer Brown LLP colleagues Charles Rothfeld and Joseph Minta, who represent the plaintiffs.) An excerpt (one paragraph break added):

President Obama, seeking to reduce the “culture of special interest access,” directed executive agency heads to bar federally registered lobbyists from serving on advisory committees. Appellants, federally registered lobbyists wishing appointment to one type of advisory committee — Industry Trade Advisory Committees (ITACs) — challenge the constitutionality of the presidential ban. Because the ban requires Appellants to limit their exercise of a constitutional right — in this case, the First Amendment right to petition government — in order to qualify for a governmental benefit — in this case, ITAC membership — we reverse the district court’s premature dismissal of the complaint and remand for that court to determine in the first instance whether the government’s interest in excluding federally registered lobbyists from ITACs outweighs any impingement on Appellants’ constitutional rights.

Created by the Trade Act of 1974, which requires the President to “seek information and advice from representative elements of the private sector … with respect to” trade policy, ITACs play a significant role in shaping international trade agreements. The sixteen industry-specific ITACs run the gamut of industrial interests from Aerospace Equipment to Consumer Goods to Service and Financial Industries. In addition to meeting “at the call of the United States Trade Representative,” ITACs prepare reports for the President, Congress, and the Trade Representative on whether proposed trade agreements provide for “equity and reciprocity within” the committees’ sector. Although ITAC advice is non-binding, the Act requires the Trade

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Bloggers = Media for First Amendment Libel Law Purposes

So holds today’s Obsidian Finance Group v. Cox (9th Cir. Jan. 17, 2014) (in which I represented the defendant). To be precise, the Ninth Circuit concludes that all who speak to the public, whether or not they are members of the institutional press, are equally protected by the First Amendment. To quote the court,

The protections of the First Amendment do not turn on whether the defendant was a trained journalist, formally affiliated with traditional news entities, engaged in conflict-of-interest disclosure, went beyond just assembling others’ writings, or tried to get both sides of a story. As the Supreme Court has accurately warned, a First Amendment distinction between the institutional press and other speakers is unworkable: “With the advent of the Internet and the decline of print and broadcast media … the line between the media and others who wish to comment on political and social issues becomes far more blurred.” Citizens United, 558 U.S. at 352. In defamation cases, the public-figure status of a plaintiff and the public importance of the statement at issue — not the identity of the speaker — provide the First Amendment touchstones.

I think that’s right, not just as a matter of First Amendment principle but also as a matter of history and precedent (as I documented at length in Freedom for the Press as an Industry, or for the Press as a Technology? From the Framing to Today, 160 U. Pa. L. Rev. 459 (2012)). The specific legal issue that the Ninth Circuit was confronting in this passage, by the way, is whether all who speak to the public are equally protected by the Gertz v. Robert Welch, Inc. rules, which are that

  1. libel plaintiffs suing over statements on matters of public concern must prove that the defendant was negligent
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Mauritanian Convicted of Apostasy

AllAfrica and The Malay Mail Online, as well as other outlets, so report. From AllAfrica:

A young Muslim man in Mauritania is facing a possible death sentence after being convicted of apostasy and jailed for having written an article criticising the prophet Mohammed, a judicial source said … He … “was convicted of lack of respect for the prophet,” and jailed, the source told AFP.

The author of the article will be brought before a judge and given the chance to repent but if he refuses, “he risks the death penalty,” the source added.

The author apparently “questioned the decisions taken by Islam’s prophet and his companions during the holy wars,” as well accusing Mauritanian society “of perpetuating ‘a sinful social order’” and and “marginali[zing] and discriminat[ing] against [many Mauritanians] from birth.” […]

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See a Crime and Videorecord It? Go to Prison

That’s what this proposed South Carolina bill (S.B. 878) (sponsored by Sen. Sheheen — who is running for governor — and now before the Senate Committee on the Judiciary) would provide:

(A) It is [a felony punishable by up to five years in prison] for a person to produce or create, or conspire to produce or create, a video or audio recording, digital electronic file, or other visual depiction or representation of a violent crime, as defined in Section 16-1-60, during its commission … [except for]

(1) viewing, photographing, videotaping, or filming by personnel of the Department of Corrections or of a county, municipal, or local jail or detention center or correctional facility for security purposes or during investigation of alleged misconduct by a person in the custody of the Department of Corrections or a county, municipal, or local jail or detention center or correctional facility;

(2) security surveillance in bona fide business establishments;

(3) accidental or incidental recordings;

(4) any official law enforcement activities;

(5) private detectives and investigators conducting surveillance in the ordinary course of business; or

(6) any bona fide news gathering activities.

So you see a robbery occurring, or the police illegally beating a citizen, and you videorecord it — you’ve now committed a felony, unless you can persuade a court it’s a “bona fide news gathering activit[y].” (The recording isn’t “accidental or incidental,” since you’re making it deliberately.) Or say your friend is being attacked, and you record the video to give to the police or to use in a civil suit; perhaps you even expected an attack, for instance if you’re going to a potentially violent demonstration or going past a place where thugs have routinely attacked people of some race, religion, or sexual orientation. That too is a felony.

And while one could […]

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Abrams on McCullen v. Coakley

On January 15, the Supreme Court will hear oral argument in McCullen v. Coakley, a challenge to Massachusetts’s abortion-clinic-entrance-access law.  In this case, the Court will have the opportunity to limit, or overrule, Hill v. Colorado,  “what may well be its most indefensible First Amendment ruling so far this century,” according to First Amendment lawyer extraordinaire Floyd Abrams.  (FWIW, I tend to agree, and Hill would probably be my answer to my own exam question.)

In a WSJ op-ed, Abrams explains his antipathy to Hill and opposition to the law at issue in McCullen.  Hill upheld a Colorado statute that made it a criminal offense to approach within eight feet of another person to engage in “oral protest, education or counseling” within 100 feet of a health care facility entrance.  In effect, the Colorado law created speech-free “bubbles” around those going in or out of health care facilities.  The intent, as was quite clear at the time, was to obstruct anti-abortion protesters, and was quite overbroad, in that it extended well beyond what is necessary to prevent the obstruction of clinic entrances.  Nonetheless, the law was upheld as a content-neutral restriction.

The Massachusetts law is both more clearly focused on anti-abortion speech (it only applies to abortion clinics) and more broad, in that it prohibits anyone other than clinic employees  and patients from remaining within  35 feet of any clinic entrance.  As Abrams notes, the Massachusetts abortion-clinic-entrance-access law prohibits “peaceful, nondisruptive antiabortion advocacy via the distribution of leaflets and oral advocacy at the very places it is most likely to be effective,” and yet the rationale of Hill would seem to make that okay.

the Supreme Court decision in Hill v. Colorado (2000) provides support for just such a First Amendment limiting approach. . .

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CWRU President and Provost Reject Academic Boycott of Israel

In a statement e-mailed to faculty and other members of the university community, Case Western Reserve University President Barbara Snyder and Provost Bud Baeslack forcefully rejected calls for an academic boycott of Israel.  As they note, academic boycotts of this sort run contrary to principles of academic freedom and “seek to subvert one of higher education’s core values in service of other ends.”  I’ve reproduced their entire statement below the fold. […]

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Mann v. Steyn Mulligan

On December 19, the District of Columbia Court of Appeals effectively erased Michael Mann’s initial court victory in his defamation lawsuit against Mark Steyn, National Review, Rand Simberg and the Competitive Enterprise Institute.  Here’s how Mark Steyn pithily summarizes the developments:

1. Dr Michael Mann’s lawyer, John Williams, filed a fraudulent complaint falsely representing his client as a Nobel Laureate, and accusing us of the hitherto unknown crime of defaming a Nobel Laureate.
2. After Charles C W Cooke and others exposed Dr Mann’s serial misrepresentation of himself as a Nobel Prize winner, Mann’s counsel decided to file an amended complaint with the Nobel falsehood removed.
3. Among her many staggering incompetences, DC Superior Court judge Natalia Combs-Greene then denied NR’s motion to dismiss the fraudulent complaint while simultaneously permitting Mann’s lawyers to file an amended complaint.
4. The appellate judges have now tossed out anything relating to Mann’s original fraudulent complaint, including Judge Combs-Greene’s unbelievably careless ruling in which the obtuse jurist managed to confuse the defendants, and her subsequent ruling in which she chose to double-down on her own stupidity. Anything with Combs-Greene’s name on it has now been flushed down the toilet of history.
5. So everyone is starting afresh with a new judge, a new complaint from the plaintiff, and new motions to dismiss from the defendants. That’s the good news.
6. The bad news is that Mann’s misrepresentation of himself as a Nobel Laureate and Combs-Greene’s inept management of her case means that all parties have racked up significant six-figure sums just to get back to square one. In a real courthouse – in London, Toronto, Dublin, Singapore, Sydney – Dr Mann would be on the hook for what he has cost all the parties through his fraudulent complaint. But, this being quite the

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Northwestern Can’t Quit ASA Over Boycott Because it is Not a Member

Northwestern University recently condemned the American Studies Association boycott of Israel. Unlike some other schools that quit their institutional membership in the ASA over the boycott, Northwestern has not. Many of my Northwestern colleagues were about to start urging a similar withdrawal.

Then we learned from our administration that despite being listed as in institutional member by the ASA, the university has, after checking, concluded it has no such membership, does not plan to get one, and is unclear why the ASA would list us as institutional member.

Apparently, at least several other schools listed by the ASA as institutional members say they have no such relationship.

The ASA has been spending a great deal of energy on political activism far from its mission, but apparently cannot keep its books in order. The association has yet to explain how it has come to list as institutional members so many schools that know nothing about such a membership. The ASA’s membership rolls may get much shorter in the coming weeks even without any quitting.

How this confusion came to arise is unclear. ASA membership, like that of many academic organizations, comes with a subscription to their journal. Some have suggested that perhaps the ASA also counts as members any institution whose library happened to subscribe to the journal, ie tacking on membership to a subscription, rather than vice versa. This would not be fair on their part. A library may subscribe to all sorts of journals for academic research purposes (ie Pravda), without endorsing the organization that publishes it. That is the difference between subscription and membership.

I eagerly await the ASA’s explanation of the situation. […]

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The Crime of “Annoy[ing]” Local Governments Through “Offensively Repetitious” Threats of Litigation

From Tennessee House Bill 540, which has been recommended for passage by the House Local Government Committee:

A person commits an offense who intentionally, without or prior to the filing of a [lawsuit] … communicates, in writing or by electronic communication, with a local government unit or local public servant in an offensively repetitious manner with the intent to influence, persuade, or induce the local government unit or local public servant to terminate, halt or cease a particular policy, practice, action or custom and the person:

(1) (A) Intends the communication to be a threat of initiating legal action against the local government unit or local public servant challenging the particular policy, practice, action or custom, and a reasonable person would perceive the communication to be a threat of initiating legal action; or

(B) Makes a threat within the communication to initiate legal action against the local government unit or local public servant challenging the policy, practice, action or custom; and

(2) Makes the communication knowing that it will alarm or annoy the local government unit or local public servant.

The proposal was apparently prompted by a desire to restrict Establishment Clause challenges — that’s what the rest of the bill is about — but this section would cover all threats of litigation.

The proposal is clearly an unconstitutional content-based restriction on freedom of speech to government officials, and on the right to petition the government for redress of grievances. Petitions need not be just “please be so kind as,” but may also include “or else we’ll petition another branch of government — the courts — to vindicate our rights.” And neither the Free Speech Clause or Petition Clause excludes speech that’s annoying or said “in an offensively repetitious manner.” Narrowly crafted restrictions on certain manners of communications, […]

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Why the Utah Law Criminalizing Polygamy Is Unconstitutional

I’m no fan of the Utah federal court’s opinion striking down the Utah law criminalizing polygamy. But I do think that the law, at least as currently interpreted by Utah officials, is indeed unconstitutional. Here’s a brief sketch of my thinking.

1. The relevant statute states,

A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.

It isn’t limited to attempts to fraudulently claim a legal status of marriage, whether the claims are made to the government, to one’s supposed spouse, or otherwise. “Cohabits,” in Utah law, means “to live together as husband and wife.” State v. Barlow, 153 P.2d 647 (Utah 1944). Moreover, the prosecutor in this case stated (pp. 59-60) that simply being in a long-term sexual relationship and living together isn’t sufficient. Neither is being in a sexual relationship in which a person who is already married to A says, “I’m committed to this woman [B], I’m going to take care of her for the rest of her life.”

What is necessary, according to the prosecutor, is that “there be a marriage of some sort,” even one that doesn’t purport to be legally valid. According to the prosecutor, “I think it’s the representation that they make to the world as to what is their relationship. If they make it as husband and wife, then that constitutes marriage under the statute.”

2. Utah law, then, isn’t a regulation of sexual conduct (which would raise interesting questions under Lawrence v. Texas). People are free to have sex with lots of other people, and live with all those people. What triggers criminal punishment is saying something to the world — […]

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Student Dismissed Partly Because His Expressed “Views … Were Deemed Not in Alignment” with Government Standards

Here’s yet another brief that the UCLA First Amendment Amicus Brief Clinic has filed in the last few weeks. This brief is in a Ninth Circuit university student dismissal case, and it’s filed on behalf of the Foundation for Individual Rights and the Student Press Law Center, in Oyama v. University Hawaii (the link is to the decision that is being appealed). My students Charlie Linehan, Jun Shimizu, and Michael Smith worked on the brief. I quote the brief below, for those who want to read it on the blog, though you can also find a PDF here. You can also read FIRE’s post and SPLC’s post on the case.

Please note that, in all Clinic cases, the students and I act as advocates for the clients. We are making the best arguments we can for the position we are taking; we are not necessarily endorsing it as the position that we think the law ought to take. (Sometimes you can tell from past posts of mine that I do personally agree with that position, but you should not draw such an inference simply from the filing of the brief.) I should also note that the amicus briefs are designed to be read alongside the parties’ briefs, so they naturally omit much of the factual and procedural background that the parties’ briefs make clear; my apologies if, as a result, some of the material is therefore opaque to other readers.

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SUMMARY OF ARGUMENT

The University of Hawaii dismissed Oyama from its teaching credential program, in part because “the views [he had] expressed regarding students with disabilities and the appropriateness of sexual relations with minors were deemed not in alignment with standards set by the Hawaii Department of Education” and other entities. Oyama v. Univ. of Hawaii […]

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The Aurora Mass Shooting, Choice of Law, and Newsgatherer Shield Statutes

Reporter, who is based in New York, gathers information in Colorado, related to a Colorado crime. She returns to New York, but is subpoenaed to appear in Colorado court proceedings, to testify about her confidential sources. Should New York newsgatherer shield law or Colorado newsgatherer shield law apply? An interesting and unusual choice of law problem, on which New York’s highest court split 4-2-1 yesterday in In the Matter of Holmes v. Winter (N.Y. Dec. 10, 2013). An excerpt:

New York’s Shield Law provides an absolute privilege that prevents a journalist from being compelled to identify confidential sources who provided information for a news story. In this case, the issue is whether it would violate New York public policy for a New York court to issue a subpoena directing a New York reporter to appear at a judicial proceeding in another state where there is a substantial likelihood that she will be directed to disclose the names of confidential sources or face being held in contempt of court.

Petitioner James Holmes is charged with multiple counts of murder, among other offenses, arising from a mass shooting at a midnight screening of a “Batman” movie at an Aurora, Colorado movie theater. Twelve people were killed during the incident and 70 others were wounded. Holmes was arrested at the scene soon after the violence ended. Anticipating that the shootings would generate widespread media attention, the state court presiding over the criminal charges—the District Court for the County of Arapahoe—immediately issued an order limiting pretrial publicity in the case by either side, including law enforcement.

On July 23, 2012, while executing a search warrant, the police took possession of a notebook that Holmes had mailed to a psychiatrist at the University of Colorado before the shootings. Holmes asserted that the notebook, which

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Bans on “Disquiet[ing]” Houses of Worship Through “Profane Discourse” Outside Them

Here’s one more brief that the UCLA First Amendment Amicus Brief Clinic has filed in the last few weeks; its argument is that the “profane discourse” law is content-based, which would make it unconstitutional. This one is on behalf of the Thomas More Society, in SNAP v. Joyce (8th Cir.) (the link is to the decision that is being appealed). My students Tess Curet, Nathan Davis, and Michael Smith worked on the brief. I quote the brief below, for those who want to read it on the blog, though you can also find a PDF here. The plaintiffs, whose position we are supporting, are represented by the ACLU of Missouri.

Please note that, in all Clinic cases, the students and I act as advocates for the clients. We are making the best arguments we can for the position we are taking; we are not necessarily endorsing it as the position that we think the law ought to take. (Sometimes you can tell from past posts of mine that I do personally agree with that position, but you should not draw such an inference simply from the filing of the brief.) I should also note that the amicus briefs are designed to be read alongside the parties’ briefs, so they naturally omit much of the factual and procedural background that the parties’ briefs make clear; my apologies if, as a result, some of the material is therefore opaque to other readers.

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Summary of Argument

Missouri Revised Statutes § 574.035 (the Missouri House of Worship Protection Act), in relevant part, criminalizes behavior that

  1. “[i]ntentionally and unreasonably disturbs … or disquiets” a house of worship
  2. through “profane discourse [and] rude or indecent behavior”
  3. “so near [the house of worship] as to disturb the order and solemnity of the

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