In 1995, petitioner, a tenured teacher, began working for respondent New York City ]Department of Education (DOE). (Pet.). In February of 1997, she began working at Public School (P.S.) 203 in Brooklyn. (Petitioner’s Appendix [Pet. Appx.]).

On June 22, 2010, a New York City public school student fatally drowned during a field trip to the beach. On June 23, 2010, after the school day was over and petitioner was at home, she posted the following on her Facebook page: “After today, I am thinking the beach sounds like a wonderful idea for my 5th graders! I HATE THEIR GUTS! They are the devils (sic) spawn!” One of her Facebook friends then posted, “oh you would let little Kwame float away!” to which petitioner responded, “Yes, I wld (sic) not throw a life jacket in for a million!!”

After viewing petitioner’s postings, one of petitioner’s Facebook friends, a P.S. 203 colleague, contacted the school’s assistant principal and expressed concern about the propriety of the postings…. [The hearing officer found that petitioner had engaged in "misconduct, neglect of duty and conduct unbecoming her profession” based on the comments and on the teacher’s allegedly “directing her friend, Joanne Engel, to provide false information to investigators by claiming to have written the comments on [petitioner's] Facebook.com webpage … so that [petitioner] would not get in trouble.” –EV]…. In deeming termination the appropriate penalty for petitioner’s misconduct, the hearing officer emphasized the public nature of online postings and noted that petitioner had breached DOE’s trust by conspiring with her friend such that “it is impossible for her employment to be continued” and that teachers should instill in their students the importance of taking responsibility for their actions….

[The judge held that the finding of misconduct was not arbitrary and capricious -- the legal standard used for review of such decisions under New York law -- and found that he could not consider the First Amendment arguments as to that finding. But he then turned to the magnitude of the penalty:]

The standard for reviewing a penalty imposed after a hearing held pursuant to Education Law § 3020-a is whether the punishment imposed “is so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one’s sense of fairness.” … Here, petitioner’s 15-year employment history with the DOE was unblemished before she posted the offensive comments, and she posted them outside the school building and after school hours. Moreover, there is no indication in the record, nor any finding, that her postings affected her ability to teach.

There is also no evidence that her postings injured her students or that she intended any injury. Although the hearing officer emphasized the public nature of her postings and her creation of an “electronic footprint,” she made no finding as to their effect on petitioner’s past and future students. And, the specter of racism emerging from the postings did not originate with petitioner, and there is no indication in the record apart from the posting that she is intolerant or that the feeling she expressed, made after a hard day at work, affects the manner in which she teaches and treats her students.

While [for procedural reasons] I do not address the hearing officer’s determination as to the alleged violation of petitioner’s first amendment right to freedom of speech, in these circumstances, termination of petitioner’s employment is inconsistent with the spirit of the first amendment. Facebook has rapidly evolved from a platform used solely by American college students to a world-wide social and professional network. It is commonly used to advertise businesses, organize parties, debate politics, and air one’s grievances, among myriad other uses. Indeed, with Facebook, as with social media in general, one may express oneself as freely and rapidly as when conversing on the telephone with a friend. Thus, even though petitioner should have known that her postings could become public more easily than if she had uttered them during a telephone call or over dinner, given the illusion that Facebook postings reach only Facebook friends and the fleeting nature of social media, her expectation that only her friends, all of whom are adults, would see the postings is not only apparent, but reasonable. While her reference to a child’s death is repulsive, there is no evidence that her postings are part of a pattern of conduct or anything other than an isolated incident of intemperance.

Moreover, there is no reason to believe that petitioner will again post inappropriate or offensive comments online, as she repeatedly apologized during the administrative hearing for the posts, and expressed tearful remorse at oral argument before me….

And, while students must learn to take responsibility for their actions, they should also know that sometimes there are second chances and that compassion is a quality rightly valued in our society. Ending petitioner’s long-term employment on the basis of a single isolated lapse of judgment teaches otherwise. While I do not condone petitioner’s conduct and acknowledge that teachers should act as role models for their students, termination in these circumstances does not correspond with the measure of compassion a teacher should show her students. Rather, it places far too great a strain on the right to express oneself freely among friends, notwithstanding the repulsiveness of that expression. (Cf Hurley v Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 US 557, 574 [1995] ["the point of all speech protection ... is to shield just those choices of content that in someone's eyes are misguided, or even hurtful."]; Texas v Johnson, 491 US 397, 414[1989] ["If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."]). …

(1) Some of the analysis seems limited to high-level “policymaking” employees, such as a university Associate Vice President.

(2) But some of the argument suggests that any time any government manager with hiring and firing authority — or even with substantial input into hiring and firing decisions — speaks out in opposition to civil rights laws protecting gays, the government may fire the manager on the grounds that the speech (a) “could disrupt the … [d]epartment by making homosexual employees uncomfortable or disgruntled,” (b) might lead “homosexual prospective employees [to] reconsider applications,” and (c) might “lead to challenges to her personnel decisions.”

(3) This in turn highlights the danger to government managerial employees who want to participate in, for instance, campaigns opposing same-sex marriage or proposed laws banning sexual orientation discrimination. If you’re such an employee, you’d be wise to keep your mouth shut on such matters, whether it comes to letters to the editor, to blog posts, to yard signs, to campaign donations, or to signatures on initiative or referendum petitions (in states that disclose such signatures). After all, any of these might be noticed by people who will publicize what you said or did, and who will directly or indirectly inform your supervisors about it.

Maybe that’s an acceptable price to pay for effective functioning of government workplaces — the Pickering test is generally not very speech-protective, on this subject or others — and maybe it’s not. But in any case that seems to be where things are headed, at least in many such workplaces.

As Associate Vice President for Human Resources, Plaintiff was an “appointing authority” at the University, which means she had the power to hire and fire employees…. The University had an Equal Opportunity Policy which prohibited discrimination based on sexual orientation. Further, the University has taken explicit steps to reach out to homosexuals and make them feel welcome.

On April 4, 2008, the Toledo Free Press ran an opinion by Michael Miller which Plaintiff felt compared the modern movement toward increased tolerance and rights for homosexuals to the historical struggles of the African–American civil rights movement and which noted that one University of Toledo campus offered domestic partner benefits and the other did not. Due to her religious conviction, Plaintiff, an African–American woman, felt the need to respond. The Toledo Free Press ran her response on April 18, 2008. In it she objected to the idea that homosexuals are “civil rights victims,” asserted that homosexuality is purely a choice, and noted that the inter-campus benefits disparities involved all employees, not just those interested in domestic partner benefits. Plaintiff identified herself as “an alumnus of the University of Toledo’s Graduate School, an employee and business owner” and signed only her name, though she used her University photograph. She did not mention her title or duties within the University…. Because of the response to her article, Plaintiff was immediately placed on administrative leave….

In a First Amendment Free Speech employment retaliation claim … a plaintiff must show that the speech involved “matters of public concern,” that the state employer’s interest “‘as an employer, in promoting the efficiency of the public services it performs through its employees’ … [does] not outweigh [plaintiff's] desire to ‘contribute to public debate’ like any other citizen,” and that the speech was not made “pursuant to” the duties of plaintiff’s employment…. Plaintiff was not attempting to fulfill any job duty in writing her article, but to present a personal opinion. Even if she attempted to give herself credence with the public by identifying herself, this does not satisfy the Garcetti test. Thus, Defendants’ theory that Plaintiff spoke pursuant to her job duties does not defeat her First Amendment claim.

Defendants present two arguments concerning the balancing factor [the so-called “Pickering balance” –EV]. First, they argue that Plaintiff’s specific authority automatically tips the balance in their favor. Second, they assert the specific weights and balances presented by this case demonstrate that the University’s interest outweighs Plaintiff’s.

The first argument relies on the Sixth Circuit’s statement that when certain employees “speak on job-related issues in a manner contrary to the position of [their] employer” they have been insubordinate and a presumption arises that the balance weighs in the favor of the employer. Rose v. Stephens, 291 F.3d 917, 923 (6th Cir. 2002). Thus, “when an employee is in a policymaking or confidential position and is terminated for speech related to his or her political or policy views, there is a presumption that the Pickering balance favors the government.” In determining whether this exception applies to a particular situation, the Sixth Circuit directs the use of the four categories describing permissible political patronage employment actions set forth in McCloud v. Testa, 97 F.3d 1536 (6th Cir. 1996). If a position falls within one of the categories, the presumption in favor of the employer automatically applies.

The first category includes “positions specifically named in relevant federal, state, county or municipal law to which discretionary authority with respect to the enforcement of that law or the carrying out of some other policy of political concern is granted.” Category two includes “positions to which a significant portion of the total discretionary authority available to category one position-holders has been delegated.” The third category consists of “confidential advisors who spend a significant portion of their time on the job advising category one or category two position-holders on how to exercise their statutory or delegated policymaking authority, [and] other confidential employees who control the lines of communications to category one positions, category two positions or confidential advisors.” The [fourth] category relates to politically balanced positions. Id. A position may still be sufficiently “confidential” or “policymaking” for the Rose presumption to apply without fitting into one of the four categories….

Defendants assert that Plaintiff’s position as Associate Vice President for Human Resources fits into either category two or three. Plaintiff responds with her Declaration which states that she was not delegated “significant” policy making authority and did not spend a “significant” amount of time advising Defendants. She concludes that she was a ministerial employee. While the contours of any delegation or time spent advising may be factual questions, whether any delegation or time spent are “significant” is a question of law for the Court.

Notably, Plaintiff’s Declaration does not mention appointing authority. The Board of Trustees is charged, by Ohio law, with governing the university. Thus, it falls within category one. At the time Plaintiff was fired, the Board had adopted a policy delegating appointing authority to four specific positions, in addition to the President; Plaintiff’s position was listed and Logie’s was not. Further, not only did Plaintiff testify that she was responsible for employment decisions such as hiring and firing, but Ohio law states that all appointing authorities have that power. Jacobs testified that he had been directly involved in only a handful of terminations. Any delegation of the ability to hire and fire is clearly significant, especially due to the possibility of employment related lawsuits. Plaintiff does not present anything to restrict the import of her appointing power and instead focused on Jacobs’ control of written policy. As such, the Court concludes that Plaintiff was vested with a significant portion of the statutory authority available, placing her within category two.

Even though Plaintiff fell within the second McCloud category, the presumption of insubordination will only apply if her statement related her policy view on a matter related to her employment. Plaintiff stated that she did not think homosexuals were civil rights victims. Not only does this statement directly contradict the University’s policies granting homosexuals civil rights protections (such as the Equal Opportunity Policy), but as an appointing authority, Plaintiff was charged with ensuring that the University maintained those protections in employment actions. Thus, the Rose insubordination presumption applies. Plaintiff has offered nothing more than her claim that she “was never insubordinate to anyone” without any justification for why that would overcome (or even address) the presumption. Because the presumption holds, the balance of employee and employer concerns automatically tips in the employer’s favor.

Defendants further argue that even if the Rose presumption does not apply, the actual weighing of employee versus employer interests in this case would clearly favor them. Plaintiff counters by asserting that her speech should be afforded the greatest protection.

In demonstrating the employer’s interests in this case, Defendants again emphasize Plaintiff’s position. As such, they emphasize her authority over employment actions and further note that even she has testified that she was serving as “an ambassador” for the University. Given her position, her statements against the rights of homosexuals could have done very serious damage to the University in three ways (all of which Defendants cited and stated multiple times, including in the termination letter). Though all three may be speculative and concern only what might happen, as noted above, the law does not require Defendants to wait for damage to occur.

First, her statements could disrupt the Human Resources Department by making homosexual employees uncomfortable or disgruntled. Though it did not enter into the actual consideration, Erich Stolz’s letter to Defendants clearly demonstrated that effect: he stated that her letter not only made him individually uncomfortable, but it also reduced his respect for her professionalism. Plaintiff responds that mere offense is insufficient to justify her termination. That might be an appropriate response to Defendants’ offense, but it does not address loss of cohesion in the Human Resources Department as a legitimate interest of her employer. Further, this addresses only the least of the three feared effects.

Second, Plaintiff’s public statements could have interfered with the University’s interest in diversity. Because of her statements, homosexual prospective employees might reconsider applications they knew she would review or withdraw them altogether. This concern removes a significant portion of Plaintiff’s rebuttal that she has only acted fairly because she has not demonstrated how any applicants would know. Plaintiff also complains about consideration of the value of diversity as opposed to focus on teaching capacity alone. However, not only is that an overly simple description of the University’s interest, any decrease in the capability of the University workforce could have an impact on instruction. If fewer qualified people apply, because some are homosexuals who know that the head of Human Resources (Plaintiff) does not think they deserve civil rights, then it could be that the quality of the eventual workforce will decline. Further, Plaintiff has not rebutted the concept that diversity itself (even with regard to non-faculty positions) improves the teaching function.

Third, as the termination letter stated, Plaintiff’s public position could lead to challenges to her personnel decisions. In other words, Defendants feared lawsuits from homosexuals alleging sexual orientation or sexual harassment discrimination. This fear is clearly appropriate as her statement could be offered in a suit for either direct evidence of discrimination or for evidence of pretext (in rebuttal to a non-discriminatory reason). Further, Plaintiff’s article could also lead to additional suits and grievances as people realize they may have a claim or the statement could be just enough to cause someone to decide to sue who otherwise might not have undertaken the expense and effort. Thus, Plaintiff’s statements could subject the University to significant expense through more litigation or more difficult litigation (or other employment action challenges)….

Former Naples Police Chief Steven C. Guibord is charged with criminal defamation, a class B misdemeanor, in Uintah County. Prosecutors allege that he used the name of the city’s current police chief [Mark Watkins] to post derogatory comments on the online memorial pages for the two fallen Border Patrol agents….

Guibord — posing as Watkins — posted comments on memorial pages for two Border Patrol agents that are offensive to law enforcement officers, according to state investigators….

Clark’s page on the Officer Down Memorial Page website included a comment attributed to Watkins that said, “I realize that the Border Patrol is just a security organization, but we, in the police services recognize your sacrifice.”

Rojas’ page contained a similar comment, also attributed to Watkins, that referred to the Border Patrol as a “security business.”

For those in the law enforcement community, being identified as a security guard is considered a serious insult….

The theory is that Guibord’s use of Watkins’ name — which essentially states to readers that Watkins posted the comments — is a knowing falsehood that injures Watkins’ reputation. One could argue that the falsehood isn’t defamatory, because a reasonable reader wouldn’t perceive the statements as that derogatory, and therefore wouldn’t have a dimmer view of Watkins. But given the audience, and the fact that Watkins is a police chief, I suspect that the attribution of the statements to Watkins would indeed injure Watkins’ reputation.

And if this is so, then the criminal libel prosecution would likely be permissible: Though Garrison v. Louisiana (1964) held that criminal libel laws must require a showing that the speech is a knowing or reckless falsehood, Utah Code § 76-9-404 — which says, “[a] person is guilty of criminal defamation if he knowingly communicates to any person orally or in writing any information which he knows to be false and knows will tend to expose any other living person to public hatred, contempt, or ridicule” — embodies such a requirement. (For more on this, see I.M.L. v. State (Utah. App. 2002), which struck down a different Utah criminal libel statute.) Though most states have repealed their criminal libel statutes, the remaining statutes, if sufficiently narrow (as Utah’s seems to be), are likely constitutional.

Thanks to Dan Laidman for the pointer.

Union believes …
3. Anti-Semitism includes but is not limited to:
* Denying, trivializing and misconstruing the Nazi Holocaust. This includes denying the fact, scope, method, or motivation for the genocide of 6 million Jews at the hands of the National Socialist regime. It also includes the accusation that Jews or the state of Israel have fabricated, cause or over-exaggerated the Holocaust.
* Calling for, aiding or justifying the killing or harming of Jews for the sake of their Jewish religion, ethnicity or identity.
* Making mendacious, dehumanizing, demonizing, or stereotypical allegations about Jews as such. This includes accusations of Jewish control of the world, government, media, as well as blaming Jews for imagined and real atrocities.
* Questioning the loyalty of Jews to their nation of citizenship simply on the basis of their Jewish identity. This includes claims that Jews as a collective or a community subvert or mislead the general population, as well as the claim that Jews are more loyal to the state of Israel than their country of citizenship.
* Claiming that Jews do not have the same rights as any other ethnic group. This includes the right to free speech, free practice of religion, free use of native languages (i.e. Hebrew, Yiddish, Ladino, etc.) and self-determination.
* Equating Jews or maliciously equating Jewish Foundations of the state of Israel with the Nazi Regime. This includes, but is not limited to equating Zionism with Nazism and claiming that ‘History is repeating itself’ with regards to the Nazi Holocaust and the state of Israel. This also includes using Jewish symbols and religious imagery alongside Nazi symbols and imagery. This does not necessarily include analogies between historical events.
* Using Jewish symbols to antagonize, harass, and intimidate Jewish students.
4. Legitimate criticism of the Israeli government and its actions are not inherently anti-Semitic.

Union resolves …
2. To ensure all anti-Semitic incidents aimed at or perpetrated by LSE students either verbal, physical or online are dealt with swiftly and effectively in conjunction with the school and, if appropriate or requested by the victim, the Metropolitan Police.

Now apparently LSE students are supposed to be “dealt with swiftly and effectively” for analogizing Israeli conduct to the Holocaust, or claiming that Israel shouldn’t exist (since I take it that this would be seen as denying Jews’ “self-determination”), “blaming Jews for imagined and real atrocities,” “using Jewish symbols to antagonize … Jewish students,” or claiming that Jews are generally more loyal to Israel than to their country of citizenship. As it happens, I think that such speech is generally bunk. But the point of Western universities, it seems to me, is to be places where bunk can be debunked — not “dealt with swiftly and effectively” through administrative sanctions (or, “if appropriate or requested by the victim,” by the police), including when it isn’t even said in university programs but “online” “by LSE students.”

Union believes
1. In the right to criticise religion,
2. In freedom of speech and thought,
3. It has a responsibility to protect its members from hate crime and hate speech,
4. Debate on religious matters should not be limited by what may be offensive to any particular religion, but the deliberate and persistent targeting of one religious group about any issue with the intent or effect of being Islamophobic (‘Islamophobia’ as defined below) will not be tolerated.
5. That Islamophobia is a form of anti-Islamic racism.

Union resolves
1. To define Islamophobia as “a form of racism expressed through the hatred or fear of Islam, Muslims, or Islamic culture, and the stereotyping, demonisation or harassment of Muslims, including but not limited to portraying Muslims as barbarians or terrorists, or attacking the Qur’an as a manual of hatred”, …
4. To ensure that all Islamophobic incidents aimed at or perpetrated by LSE students either verbal, physical or online are dealt with swiftly and effectively in conjunction with the School ….

Here’s the problem: What does it mean to “believe[]” “in freedom of speech,” if you can’t express your view that the Koran is a manual of hatred, or that Islam — or Catholicism or Scientology or atheism or any other belief system — should be hated or feared? How you can have a sensible “[d]ebate on religious matters” about the worth or dangerousness of these belief systems if the view that some of the systems are evil is “dealt with swiftly and effectively” by the School and its student government?

Two British tourists were barred from entering America after joking on Twitter that they were going to ‘destroy America’ and ‘dig up Marilyn Monroe’.

Leigh Van Bryan, 26, was handcuffed and kept under armed guard in a cell with Mexican drug dealers for 12 hours after landing in Los Angeles with pal Emily Bunting.

The Department of Homeland Security flagged him as a potential threat when he posted an excited tweet to his pals about his forthcoming trip to Hollywood which read: ‘Free this week, for quick gossip/prep before I go and destroy America?’ …

Leigh was also quizzed about another tweet which quoted hit US comedy Family Guy which read: ’3 weeks today, we’re totally in LA p****** people off on Hollywood Blvd and diggin’ Marilyn Monroe up![']

A New York Times blog post suggests the story is indeed correct, and quotes a Customs and Border Protection response that seems to acknowledge at least some details.

If the facts described in these stories are correct, this strikes me as a pretty unsound decision on the government’s part. To be sure, the government has broad authority to exclude people from the country, even based on their speech — see Kleindienst v. Mandel (1972) — and the authority would be properly exercised for people who really do seem to be threats. But I don’t see the reported Twitter messages as being an adequate basis (again, if they were the extent of the basis) to justify the government’s decisions here. Likewise, while I realize that when someone is excluded from the country they have to be held somewhere until they can leave, locking them up with people who likely genuinely are serious criminals strikes me as improper treatment.

UPDATE: I erroneously faulted TSA for the actions here — the agency involved was Customs and Border Protection, which is also part of the Department of Homeland Security. My apologies for the error, and thanks to commenter Decius for the correction.

[M]any in Tunisia, both pious and less so, were taken aback by the brief scene in which God was personified — speaking in Tunisian slang no less. A week later, a crowd of Salafis — the term used for the most conservative Islamists — attacked the house of Nabil Karoui, the station’s director, and he was soon charged with libeling religion and broadcasting information that could “harm public order or good morals.”

The trial, which Human Rights Watch called “a disturbing turn for the nascent Tunisian democracy,” was originally scheduled for Nov. 16, then postponed until January [and has since been postponed again, until April].

Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

As the Supreme Court has observed time and again, false statements of fact do not enjoy constitutional protection, except to the extent necessary to protect more valuable speech. Under this principle, the Stolen Valor Act does not impinge on or chill protected speech, and therefore does not offend the First Amendment.

One judge dissents from the panel decision, reasoning:

The majority holds that such statements — at least when made knowingly and with an intent to deceive — are categorically beyond the protective universe of the First Amendment. In contrast, I believe that the First Amendment generally accords protection to such false statements of fact. Consequently, because it is a content-based restriction on speech, the Stolen Valor Act must satisfy strict scrutiny. This it cannot do.

The Supreme Court will have the last word on this, when it decides the same question this Term in United States v. Alvarez; but I suspect that the Tenth Circuit judges’ opinions in Strandlof, which are long and detailed, will be considered carefully by the Court.

A person who is a minister, preacher, priest, or other church officer or who is an officer of any corporation or organization, religious or otherwise, may not, other than by public speech or print, urge, persuade, or command any voter to vote or refrain from voting for or against any candidate, political party ticket, or ballot issue submitted to the people because of the person’s religious duty or the interest of any corporation, church, or other organization.

Today, this would be pretty clearly seen as an unconstitutional speech restriction, but apparently in 1913 it was seen as a good government measure. Similar laws were enacted in Nevada and Oregon around the same time.

An Indonesian civil servant who posted a Facebook message asserting that God did not exist was taken into protective custody after being badly beaten by a mob, some of them his colleagues.

The atheist identified as Alexander, who goes by just one name, now faces five years imprisonment for blasphemy after police officially arrested and charged him on Friday.

The Indonesian Council of Ulema, the Islamic religious authority, reported him over his remarks on a Facebook page he moderated which said: “God does not exist[.]” Mr Alexander, 31, turned up at his government planning offices in Dharmasraya, western Sumatra, on Wednesday to be confronted by a group of men who beat him and then took him to the police.

Thanks to Opher Banarie for the pointer.

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 and other left-wing organizations that are, legally speaking, organized as corporations. Labor unions were, in fact, among the biggest beneficiaries of the Supreme Court’s Citizens United decision, which the OWS protesters revile. Do the protesters believe that labor unions and left-wing nonprofits have First Amendment rights? Should the government have unconstrained authority to forbid unions and other corporate entities from spending money on OWS protests and other forms of political speech? If not, then the OWS protesters cannot categorically reject the idea that people organized as corporations have constitutional rights too.

Perhaps the real argument is that only profit-making corporations should be denied constitutional rights, while unions and nonprofits fall in a different category. But there is nothing in the text, structure, or history of the Constitution to support any such distinction. Freedom of speech applies just as readily to speakers motivated by economic self-interest as those with more altruistic motives. Moreover, economic self-interest is a big part of the motivation of labor unions too. One of the main purposes of unions is to increase the incomes of their members. OWS itself often appeals to economic self-interest. After all, one of their central demands is the redistribution of wealth from “the 1%” to “the 99%,” including OWS activists themselves.

Such contradictions are not unusual in popular constitutionalist movements. Many Tea Party supporters, for example, continue to back the federal War on Drugs, despite the fact that much of it is unconstitutional under a limited, originalist interpretation of congressional power.

Whether OWS addresses the contradiction in their position, and, more generally, tries to develop a coherent constitutional vision remains to be seen. It’s possible that OWS will, over time, make constitutional issues a major part of their agenda, thereby becoming a full-blown popular constitutional movement. It is also possible that they will quickly move back to focusing on other matters. If I had to guess, I would predict that constitutional concerns are unlikely to become a central focus of OWS. They have too many other issues that interest them more. However, the movement is still relatively new and could easily develop in unexpected directions.

UPDATE: Lest there be any doubt, Move to Amend, the OWS offshoot that organized the “Occupy the Courts” protests states on their website that their position is that “human beings, not corporations, are the persons entitled to constitutional rights.” They don’t just think that Citizens United was wrongly decided. They believe that corporate entities should not be able to claim any constitutional rights at all. That, of course, includes not only free speech rights for unions and nonprofit corporations, but also numerous other rights.

A bigot named their WiFi signal “F— All Jews and N—-” — and now cops are investigating.

The hateful signal I.D. popped up on the iPhone of a 28-year-old mom inside a Teaneck, N.J. recreation center, where her 3-year-old daughter was attending dance class….

The Teaneck Police Department Juvenile Bureau and the Bergen County Prosecutor’s Office Computer Crime Unit are investigating it as a “possible bias crime,” Wilson said.

It should go without saying that the WiFi guy is scum, but scum have First Amendment rights, too. He has the First Amendment right to put up a sign in his window saying “Fuck All Jews and Niggers” — or burn a flag on his front lawn, or display blasphemous images where others might see them — though such speech would be understandably offensive to neighbors and passersby. Likewise, he has the right to attach such a name to his WiFi network, even though the name would be visible to neighboring WiFi users.

UPDATE: A commenter suggested that “fuck” could be banned as an “obscenity.” Not so, said the Court in Cohen v. California (1971) (holding that the wearing of a “Fuck the Draft” jacket may not be banned on such grounds). Another suggested that the words are punishable “fighting words.” But as cases such as Cohen and Gooding v. Wilson (1972) have made clear, speech can be punished as fighting words only if it is reasonably likely to lead to an immediate attack by a personally offended listener against the speaker; no such attack is likely when the speaker is not physically present, and can’t be readily identified even by those who want to immediately go and seek him out.

Another commenter suggested that the FCC has extra authority to regulate such speech, under FCC v. Pacifica Foundation (1978). I don’t think so. First, though the Pacifica decision is quite vague, it focused on traditional radio broadcasting and I doubt that it would be applicable to wireless network names (even if it is survives the Court’s reconsideration of the issue in the pending FCC v. Fox Television Stations case). Second, if the objection is to the racism and anti-Semitism and not just the word “fuck,” that would run afoul of the Pacifica plurality’s acknowledgment that “if it is the speaker’s opinion that gives offense, that consequence is a reason for according it constitutional protection”; viewpoint-neutral restrictions on vulgarity on radio broadcasting are constitutionally permissible, the Court held, but viewpoint-based bans on bigoted speech would not be. And, third and most important, Pacifica rested heavily on the FCC’s special authority in the area — and, to my knowledge, there is no FCC regulation restricting vulgar WiFi network names, and in any event that does not seem to be the legal avenue that the local police department seems to be pursuing.

Now I’ve long thought that Hazelwood School Dist. v. Kuhlmeier (1988) was correct, and that public K-12 schools should be free to control what is published in the school newspaper. If a school wants the newspaper to be its voice, it should be entitled to dictate which subjects and which viewpoints it chooses to carry, even when it speaks through the speech of students.

But what troubles me here is the superintendent’s willingness to label such speech as a form of “bullying,” which is speech that schools often ban even outside the school’s own newspaper, that schools often try to restrict even when it is said outside school, and that legislatures sometimes even try to criminalize. Indeed, the Shawano School District’s bullying policy provides that “bullying” may lead to “warning, suspension, exclusion, pre-expulsion, expulsion, transfer, remediation, termination, or discharge. Disciplinary consequences will be sufficiently severe to try to deter violations and to appropriately discipline prohibited behavior.”

I’ve long been troubled by anti-bullying policies and criminal laws, partly because “bullying” is a vague and potentially very broad term, which could easily be used to refer to political advocacy and expression of religious views. This incident, it seems to me, helps illustrate that some school officials indeed view the term “bullying” this broadly.

Today, Google’s U.S. query page features an anti-Stop-Online-Piracy-Act statement from Google. Say that Congress concludes that it’s unfair for Google to be able to speak so broadly, in a way that ordinary Americans (including ordinary Congressmen) generally can’t. Congress therefore enacts a statute banning all corporations from spending their money — and therefore banning them from speaking — in support of or opposition to any statute. What would you say about such a statute? Again, I limit the question to those who think corporations generally lack First Amendment rights.

(1) Perfectly constitutional, because corporations aren’t people, and thus have no First Amendment rights.

(2) Unconstitutional as applied to Google, because media corporations do have First Amendment rights, though other corporations don’t, and Google should be seen as a media corporation, even as to its query page rather than as to news.google.com and the like.

(3) Unconstitutional, because though corporations aren’t people and thus have no First Amendment rights for purposes of advertising in support of or opposition to candidates, they are people and thus do have First Amendment rights for purposes of other speech.

(4) Unconstitutional, for some other reason.

A Polish pop star has been fined 5000 zloty (1140 euro) by a Warsaw court for offending religious feelings.

Dorota Rabczewska, known to the public as Doda, was taken to court owing to an interview she gave for the Gazeta Dziennik Prawna daily in 2009. In the interview, the singer lamented that there were no references to dinosaurs in the Bible, and said it was “hard to believe in something written by someone who was hammered on wine and who’d been smoking herbs.”

The Warsaw Business Journal adds:

[T]he judge in the case, Agnieszka Jarosz, ruled that the artist’s statements could not be defended by an appeal to freedom of speech. She said Ms Rabczewska had the right “to assess [the content of the Bible] in the context of scientific discovery but had no right to insult” the religious text.

For more on this case, see this post from when the case was filed.

As I read this, the statute criminalizes pretty much any boycott or other economic retaliation against a person because of his “political activity.” Is this a just law? Or should people have the right to take their business elsewhere, whether on their own or together with others, and whether as customers, contractors, or employers, if they disapprove of a person’s political activities?

Should the answer be different when we’re talking about reprisals by customers, vendors, contractors, landlords, or employers? Many states impose such restrictions on employers’ firing employees for certain kinds of political activity, and South Carolina law also bans landlords from evicting their tenants for political activity, but the Minnesota statute is the only I could find that bans “economic reprisals” more broadly. (I set aside the ban on threats of physical coercion, which I think are rightly prohibited.)

I should note that, under NAACP v. Claiborne Hardware (1982), speech encouraging a boycott is protected by the First Amendment. But this law prohibits the actual economic reprisal, not the speech urging it.

Even if plaintiffs were not public figures, defendant was still entitled to the protections of Gertz v. Robert Welch, Inc.

The Supreme Court has held that the First Amendment applies equally to the institutional press and to others who speak to the public: “We have consistently rejected the proposition that the institutional press has any constitutional privilege beyond that of other speakers.” Citizens United v. FEC, 130 S. Ct. 876, 905 (2010) (internal quotation marks omitted). In support of this holding, the Court favorably quoted five Justices’ opinions in a libel case — Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 784 (1985) (Brennan, J., joined by Marshall, Blackmun, and Stevens, JJ., dissenting), and id. at 773 (White, J., concurring in judgment) — which expressly concluded that “in the context of defamation law, the rights of the institutional media are no greater and no less than those enjoyed by other individuals or organizations engaged in the same activities,” id. at 784 (a view expressly approved by Justice White, id. at 773). And the Court in Citizens United went on to specifically mention that its “‘reject[ion]’” of any greater protection for the institutional press over other speakers stemmed partly from the realities of the Internet age: “With the advent of the Internet and the decline of print and broadcast media, moreover, the line between the media and others who wish to comment on political and social issues becomes far more blurred.” 130 S. Ct. at 905-06.

Indeed, the principle that the institutional press and others who speak to the public have the same First Amendment rights has been applied by the Court in case after case since the 1930s. See, e.g., Lovell v. City of Griffin, 303 U.S. 444, 452 (1938) (stating that the freedom of the press “embraces pamphlets and leaflets” as well as “newspapers and periodicals,” and indeed “comprehends every sort of publication which affords a vehicle of information and opinion”); New York Times Co. v. Sullivan, 376 U.S. 254, 265-66 (1964) (applying the same First Amendment protection to the newspaper defendant and to the non-media defendants who placed an advertisement in the newspaper); Garrison v. Louisiana, 379 U.S. 64 (1964) (applying the rule of New York Times Co. v. Sullivan to a speaker who was not a member of the institutional press); Henry v. Collins, 380 U.S. 356, 357-58 (1965) (same, where the speaker was an arrestee who conveyed statements to the sheriff and to wire services alleging that his arrest stemmed from a “diabolical plot,” Henry v. Collins, 158 So.2d 28, 31 (Miss. 1963)); First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 782 n.18 (1978) (rejecting the “suggestion that communication by corporate members of the institutional press is entitled to greater constitutional protection than the same communication by [non-institutional-press businesses]”); Cohen v. Cowles Media Co., 501 U.S. 663, 669-70 (1991) (concluding that the press gets no special immunity from laws that apply to others, including laws — such as copyright law — that target communication); Bartnicki v. Vopper, 532 U.S. 514, 525 & n.8 (2001) (concluding that, in deciding whether defendants could be held liable under statutes banning the redistribution of illegally intercepted telephone conversations, “we draw no distinction between the media respondents and [the non-institutional-media respondent],” and citing New York Times and First Nat’l Bank of Boston as support for that conclusion).

All the federal circuits that have considered the question have likewise held that the First Amendment defamation rules apply equally to the institutional press and to others who speak to the public. Flamm v. Am. Ass’n of Univ. Women, 201 F.3d 144, 149 (2d Cir. 2000); Avins v. White, 627 F.2d 637, 649 (3d Cir. 1980); Snyder v. Phelps, 580 F.3d 206, 219 n.13 (4th Cir. 2009), aff’d, 131 S. Ct. 1207 (2011); In re IBP Confidential Bus. Documents Litig., 797 F.2d 632, 642 (8th Cir. 1986); Garcia v. Bd. of Educ., 777 F.2d 1403, 1410 (10th Cir. 1985); Davis v. Schuchat, 510 F.2d 731, 734 n.3 (D.C. Cir. 1975). As the Second Circuit put it in Flamm, “a distinction drawn according to whether the defendant is a member of the media or not is untenable,” even in private-figure cases. 201 F.3d at 149. And while the Ninth Circuit has not specifically discussed the question, it has indeed cited Gertz even where a non-institutional-press speaker was involved. See Newcombe v. Adolf Coors Co., 157 F.3d 686, 694 n.4 (9th Cir. 1998) (citing Gertz for the proposition that a “private person who is allegedly defamed” must show “that the defamation was due to the negligence of the defendant,” in a case where the defendant was not a media organization).

Moreover, the Ninth Circuit’s reasoning with regard to the First Amendment newsgatherer’s privilege is instructive for First Amendment cases more generally. In Shoen v. Shoen, 5 F.3d 1289 (9th Cir. 1993), the Ninth Circuit confronted the question whether the newsgatherer’s privilege applies only to the institutional press or also extends to book authors. Plaintiffs argued that a person who was writing a book “has no standing to invoke the journalist’s privilege because book authors are not members of the institutionalized print or broadcast media.” Id. at 1293.

But the Ninth Circuit expressly rejected that view. It found “persuasive” “the Second Circuit’s reasoning” that “it makes no difference whether ‘[t]he intended manner of dissemination [was] by newspaper, magazine, book, public or private broadcast medium, [or] handbill’ because ‘“[t]he press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion.”’” Id. (alterations in original) (quoting von Bulow v. von Bulow, 811 F.2d 136, 144 (2d Cir. 1987), which in turn quoted Lovell v. City of Griffin, 303 U.S. 444, 452 (1938)). And the Ninth Circuit concluded that “[h]ence, the critical question for deciding whether a person may invoke the journalist’s privilege is whether she is gathering news for dissemination to the public,” id., not whether she is working for the institutional media.

The same reasoning applies to the First Amendment defamation law rules, which are even more clearly secured by First Amendment precedents than are the First Amendment journalist privilege rules. See, e.g., McKevitt v. Pallasch, 339 F.3d 530, 531-32 (7th Cir. 2003) (taking the view that the Supreme Court’s First Amendment precedents do not in fact recognize a newsgatherer’s privilege). Anyone who — like defendant — is disseminating material to the public is fully protected by the First Amendment precedents, whether or not she is a “member[] of the institutionalized print or broadcast media.”

Moreover, the Supreme Court cases cited above did not turn on whether the defendants were trained as journalists, were affiliated with news entities, engaged in fact-checking or editing, disclosed conflicts of interest, kept careful notes, promised confidentiality, went beyond just assembling others’ writings, or tried to get both sides of a story. But see Obsidian Finance Group, LLC v. Cox, 2011 WL 5999334, *5 (D. Or. Nov. 30, 2011) (concluding that the defendant was not protected by Gertz because “[d]efendant fails to bring forth any evidence suggestive of her status as a journalist,” and that, “[f]or example, there is no evidence of (1) any education in journalism; (2) any credentials or proof of any affiliation with any recognized news entity; (3) proof of adherence to journalistic standards such as editing, fact-checking, or disclosures of conflicts of interest; (4) keeping notes of conversations and interviews conducted; (5) mutual understanding or agreement of confidentiality between the defendant and his/her sources; (6) creation of an independent product rather than assembling writings and postings of others; or (7) contacting ‘the other side’ to get both sides of a story”). The First Amendment fully protects the partisan polemicists in Citizens United v. FEC, the political activist in Bartnicki v. Vopper, the self-interested bank in First Nat’l Bank of Boston v. Bellotti, the disgruntled defendant in Henry v. Collins, the elected district attorney in Garrison, the activists in New York Times Co. v. Sullivan, and the Jehovah’s Witness pamphleteers in Lovell v. City of Griffin. It equally fully protects defendant.

In footnotes from a few cases from 1979 to 1990, the Court did leave open the possibility that some of its First Amendment defamation rules would only apply to the institutional press. See, e.g., Milkovich v. Lorain Journal Co., 497 U.S. 1, 20 n.6 (1990). And a few other courts, including the Oregon Supreme Court, expressly held that such First Amendment defamation rules, and especially the Gertz v. Robert Welch protections, apply only to the institutional press. See, e.g., Wheeler v. Green, 593 P.2d 777, 784-85 (Or. 1979).

But while the Oregon Supreme Court’s decision establishes what Oregon state libel law is, it is the judgments of the United States Supreme Court that are controlling on the First Amendment question. The United States Supreme Court has never held that the institutional press enjoys such extra rights. All the federal courts of appeals that have considered this question have specifically held that the institutional press lacks any such extra rights. And the Supreme Court’s decision in Citizens United expressly closed the door that the earlier footnotes left open, making clear that a speaker’s First Amendment rights do not turn on whether she is a member of the institutional press.

[T]he U.S. Court of Appeals for the 11th Circuit boldly declared last March that the regulation of “professionals’ … direct, personalized speech with clients” received no First Amendment scrutiny whatsoever.

Fortunately, that aberrant holding may not stand much longer. This Friday, the U.S. Supreme Court will meet to decide whether to review the 11th Circuit’s ruling. If it takes the case — Locke v. Shore — it will be the Court’s first opportunity in 25 years to provide much-needed guidance on the First Amendment status of “occupational speech,” a murky area of the law that has grown increasingly important as more and more people earn their living by selling their speech.

Locke v. Shore is a challenge to a Florida law that requires interior designers to be licensed by the government before they may work in a commercial setting. The plaintiffs are three interior designers and the National Federation of Independent Business, some of whose members wish to engage in speech that Florida has broadly defined as the “practice of interior design.”

Florida is one of only three states in the nation to license the practice of interior design, and the burdens Florida’s law imposes on would-be designers are extraordinary, particularly in light of the fact that 47 states see no need to license them and have had no problems as a result. Acquiring an interior design license takes years and can cost tens of thousands of dollars. To be eligible for licensure, an applicant must first complete a combined six years of post-secondary education and apprenticeship under a state-licensed interior designer and pass a state-mandated exam administered by a private testing body.

Viewed through a First Amendment lens, the law is clearly unconstitutional. Virtually everything an interior designer does is speech, from consulting with clients regarding their personal goals and tastes, to drawing up space plans, to offering advice about the selection and placement of fixtures, finishes and furnishings. The Supreme Court has repeatedly held that all of these kinds of activities constitute “speech” within the meaning of the First Amendment. Weighed against the immense burdens Florida’s interior design law imposes on this speech is an utter dearth of evidence regarding the law’s supposed benefits to the public. Indeed, attorneys for the state stipulated during the litigation they had no evidence that the unlicensed practice of interior design — which is the norm in 47 states — poses any bona fide threat to the public, or that Florida’s licensing regime had benefited the public in any demonstrable way….

I was glad to have worked on Rob Kry’s amicus brief in this case on behalf of various industry groups.

I don’t think that’s right, for reasons I talk about in Part I.E of my Penn article on the subject:

The freedom of the press-as-technology, of course, was not seen [during the Framing era] as redundant of the freedom of speech. St. George Tucker, for instance, discussed the freedom of speech as focusing on the spoken word and the freedom of the press as focusing on the printed:

The best speech cannot be heard, by any great number of persons. The best speech may be misunderstood, misrepresented, and imperfectly remembered by those who are present. To all the rest of mankind, it is, as if it had never been. The best speech must also be short for the investigation of any subject of an intricate nature, or even a plain one, if it be of more than ordinary length. The best speech then must be altogether inadequate to the due exercise of the censorial power, by the people. The only adequate supplementary aid for these defects, is the absolute freedom of the press.

Likewise, George Hay, who later became a U.S. Attorney and a federal judge, wrote in 1799 that “freedom of speech means, in the construction of the Constitution, the privilege of speaking any thing without control” and “the words freedom of the press, which form a part of the same sentence, mean the privilege of printing any thing without control.” Massachusetts Attorney General James Sullivan (1801) similarly treated “the freedom of speech” as referring to “utter[ing], in words spoken,” and “the freedom of the press” as referring to “print[ing] and publish[ing].”

And these sources captured an understanding that was broadly expressed during the surrounding decades. Bishop Thomas Hayter, writing in 1754, described the “Liberty of the Press” as applying the traditionally recognized “Use and Liberty of Speech” to “Printing,” an activity that Hayter described as “only a more extensive and improved Kind of Speech.” Hayter’s work was known and quoted in Revolutionary-era America.

Similarly, William Bollan (1766) described “printing” as “a species of writing invented for the more expeditious multiplication of copies,” and asserted that “freedom or restraint of speech and writing upon public affairs have generally been concomitant”; because of this, Bollan argued, “restraints of writing” were likely to erode the “liberty of speech” and not only of writing, and “those who desire to preserve the [liberty of speech] ought by all means to take due care of the [freedom of writing].” And Bollan used “liberty of the press” and “the freedom of writing” (in a context suggesting printing) interchangeably.

Later, Francis Holt (1812) defined the liberty of the press as “the personal liberty of the writer to express his thoughts in the more [im]proved way invented by human ingenuity in the form of the press.” William Rawle (1825) likewise characterized “[t]he press” as “a vehicle of the freedom of speech,” adding that “[t]he art of printing illuminates the world, by a rapid dissemination of what would otherwise be slowly communicated and partially understood.”

Without the freedom of the press, the freedom of speech might not have been viewed as covering printing, given that printing posed dangers that ordinary “speech” did not. Indeed, in the centuries before the Framing, governments tried to specifically constrain the use of the press-as-technology because they found it to be especially dangerous. The free press guarantees made clear that this potentially dangerous technology was protected alongside direct in-person communications.Of course, over the last several decades, the phrase “freedom of speech” has often been used to mean “freedom of expression” and to encompass all means of communication. This might have stemmed partly from technological change. New media of communication such as radio, films, television, and the Internet may fit more naturally in lay English within the term “speech” rather than “press.” And once some mass communication technologies are labeled “speech,” it becomes easier to label their traditional print equivalent “speech” as well.

The broadening of the phrase “freedom of speech” might also have been aided by the success of the “freedom of the press” clause in assuring protection for the press-as-technology. Once constitutional law applies the same legal rules to spoken and printed communication, with no extra constraint on the press, it becomes easier to use a common label to refer to the common protection.

But the canon against interpreting legal writings in a way that makes one clause redundant of another rests on the notion that the authors and ratifiers of those writings wouldn’t have written something that was redundant under their understanding. And under the late 1700s understanding, the freedom of the press-as-technology was not at all redundant of the freedom of speech.

“[T]he freedom … of the press” specially protects the press as an industry, which is to say newspapers, television stations, and the like — so have argued some judges and scholars, such as the Citizens United v. FEC dissenters and Justices Stewart, Powell, and Douglas. This argument is made in many contexts: election-related speech, libel law, the journalist’s privilege, access to government property, and more.

Some lower courts have indeed concluded that some First Amendment constitutional protections apply only to the institutional press, and not to book authors, political advertisers, writers of letters to the editor, professors who post material on their websites, or people who are interviewed by newspaper reporters. Sometimes, this argument is used to support weaker protection for non-institutional-press speakers than is already given to institutional-press speakers. At other times, it is used to support greater protection for institutional-press speakers than they already get. The argument in the latter set of cases is that the greater protection can be limited to institutional-press speakers, and so will undermine rival government interests less than if the greater protection were extended to all speakers.

But other judges and scholars — including the Citizens United majority and Justice Brennan — have argued that the “freedom … of the press” does not protect the press-as-industry, but rather protects everyone’s use of the printing press (and its modern equivalents) as a technology. People or organizations who occasionally rent the technology, for instance by buying newspaper space, broadcast time, or the services of a printing company, are just as protected as newspaper publishers or broadcasters.

Under this approach, the First Amendment rights of the institutional press and of other speakers rise and fall together. Sometimes, this approach is used to support protection for non-institutional-press speakers and to resist calls for lowering that protection below the level offered to institutional-press speakers. At other times, it is used to rebut demands for greater protection: Extending such protection to all speakers, the argument goes, would excessively undermine rival government interests — yet allowing such protection only for the institutional press would improperly give the institutional press special rights.

Both sides in the debate often appeal at least partly to the constitutional text and its presumed original meaning. The words “the press” in the First Amendment must mean the institutional press, says one side. The words must mean press-as-technology, says the other. Citizens United is unlikely to settle the question, given how sharply the four dissenters and many outside commentators have disagreed with the majority. So who is right? What light does the “history” referred to by the Citizens United dissent shed on the “text” and the Framers’ “purpose”?

The answer, it turns out, is that people during the Framing era likely understood the text as fitting the press-as-technology model — as securing the right of every person to use communications technology, and not just securing a right belonging exclusively to members of the publishing industry. The text was likely not understood as treating the press-as-industry differently from other people who wanted to rent or borrow the press-as-technology on an occasional basis.

Parts I, II, and III set forth the evidence on this subject from the Framing era and the surrounding decades. Part I discusses, among other things, early reference works and state constitutions that described the freedom of the press as a right of “every freeman,” “every man,” or “every citizen.” This right was generally seen as the right to publish using mass technology, as opposed to the freedom of speech, which was seen at the time as focusing more on in-person speech. Part II discusses the Framing-era understanding that the freedom of the press extended to authors of books and pamphlets — authors who were generally not members of the press-as-industry, though they did use the press as technology. Part III goes on to discuss fifteen cases from 1784 to 1840 that treated the freedom of the press as extending equally to all people who used press technology, and not just to members of the press-as-industry. To my knowledge, these cases have not been discussed before in this context. Each of the sources standing alone may not be dispositive. But put together, they point powerfully toward the press-as-technology reading, under which all users of mass communications technologies have the same freedom of the press.

Part IV turns to how the “freedom … of the press” was understood around 1868, when the Fourteenth Amendment was ratified. Much recent scholarship has suggested that originalist analyses of Bill of Rights provisions applied to the states via the Fourteenth Amendment should consider the original understanding as of 1868 in addition to that of 1791. And it turns out that around 1868, it was even clearer that the “freedom … of the press” secured a right to use the press-astechnology, with no special protection for the press-as-industry. Part V offers evidence that this remained true from 1880 to 1930.

Part VI then looks at how the Supreme Court has understood “freedom … of the press” since 1931, the first year that the Court struck down government action on First Amendment grounds. Throughout that time, the press-as-technology view has continued to be dominant. Many Supreme Court cases have officially endorsed this view. No Supreme Court case has rejected this view, though some cases have suggested the question remains open.

Part VII turns to how the “freedom … of the press” has been understood by lower courts since 1931, and concludes that the press-astechnology view has been dominant there as well. The first lower court decisions I could find adopting the press-as-industry view did not appear until the 1970s. Even since then, only a handful of cases have adopted such a view, and many more have rejected it. (The press-asindustry cases that this Part identifies could also be helpful as test cases for any future work that discusses the policy advantages and disadvantages of the press-as-industry model.)

None of the evidence I describe specifically deals with corporations, the particular speakers involved in Citizens United, but it does show that the institutional media has historically been seen as the equal of other people and organizations for purposes of the “freedom … of the press.” The constitutional protections offered to the institutional media have long been understood — in the early republic, around 1868, from 1868 to 1970, and in the great bulk of cases since 1970 as well — as being no greater than those offered to others.

Finally, the Conclusion briefly discusses what effect this analysis should have on the Court’s interpretation of the Free Press Clause. Of course, text, original meaning, tradition, and precedent have never been the Supreme Court’s sole guides. But any calls for specially protecting the press-as-industry have to look to sources other than text, original meaning, tradition, and precedent for support.

If you’re interested in the subject, whether as to campaign speech restrictions, libel law, the newgatherer’s privilege, or other topics, have a look at the article.

The question then, [given the long Montana history of corporate influence over politics that the court set forth -EV], is when in the last 99 years did Montana lose the power or interest sufficient to support the statute, if it ever did. If the statute has worked to preserve a degree of political and social autonomy is the State required to throw away its protections because the shadowy backers of WTP seek to promote their interests? Does a state have to repeal or invalidate its murder prohibition if the homicide rate declines? We think not. Issues of corporate influence, sparse population, dependence upon agriculture and extractive resource development, location as a transportation corridor, and low campaign costs make Montana especially vulnerable to continued efforts of corporate control to the detriment of democracy and the republican form of government. Clearly Montana has unique and compelling interests to protect through preservation of this statute.

While Montana has a clear interest in preserving the integrity of its electoral process, it also has an interest in encouraging the full participation of the Montana electorate. The unrefuted evidence submitted by the State in the District Court through the affidavit of Edwin Bender demonstrates that individual voter contributions are diminished from 48% of the total raised by candidates in states where a corporate spending ban has been in place to 23% of the total raised by candidates in states that permit unlimited corporate spending. The point is illustrative of Montana, a state where citizens generally support candidates with modest campaign donations. In the case of ballot issues, where corporations may make unlimited donations, the characteristics of donors are markedly different from those who give to candidates. In 2004, for example, 97 institutional donors gave 95% of the total money raised in ballot initiative campaigns, while 760 individual donors accounted for the remaining 5%. Similarly, in 2008, 34 institutional donors gave 95% of the total money donated to ballot campaigns. Moreover, unlimited corporate money would irrevocably change the dynamic of local Montana political office races, which have historically been characterized by the low-dollar, broadbased campaigns run by Montana candidates. At present, the individual contribution limit for Montana House, Senate and District Court races is $160, and for Supreme Court elections it is $310. With the infusion of unlimited corporate money in support of or opposition to a targeted candidate, the average citizen candidate would be unable to compete against the corporate-sponsored candidate, and Montana citizens, who for over 100 years have made their modest election contributions meaningfully count would be effectively shut out of the process….

Finally, § 13-35-227(1), MCA, is narrowly tailored to meet its objectives…. Unlike the Federal law PACs considered in Citizens United, under Montana law political committees are easy to establish and easy to use to make independent expenditures for political speech. As the Bender affidavit submitted by the State in District Court confirms, corporate PACs can make unlimited independent expenditures on behalf of candidates. The difference then is that under Montana law the PAC has to comply with Montana’s disclosure and reporting laws. And as noted earlier, corporations are allowed to contribute to ballot issues in Montana, which is a significant distinction because ballot issues often have a direct impact on corporate business activities within Montana but present less danger of corruptive influences that have concerned Montana voters since 1912. The statute only addresses contributions regarding candidates for state political office.

(There is also a good deal of discussion about the lack of burden on these particular plaintiffs, but I focus here on the court’s broader rationale, which applies to all corporations that want to speak about candidates.) But the dissent disagrees; here is an excerpt:

Having considered the matter, I believe the Montana Attorney General has identified some very compelling reasons for limiting corporate expenditures in Montana’s political process. The problem, however, is that regardless of how persuasive I may think the Attorney General’s justifications are, the Supreme Court has already rebuffed each and every one of them. Accordingly, as much as I would like to rule in favor of the State, I cannot in good faith do so…. I cannot agree that [the majority's] “Montana is unique” rationale is consistent with Citizens United….

[W]hat has happened here is essentially this: The Supreme Court in Citizens United … rejected several asserted governmental interests; and this Court has now come along, retrieved those interests from the garbage can, dusted them off, slapped a “Made in Montana” sticker on them, and held them up as grounds for sustaining a patently unconstitutional state statute….

My sense is that the disagreement with Citizens United is so striking that it is likely that the Supreme Court will agree to hear the case, and will reverse the Montana Supreme Court’s decision.

A Delhi Court on Saturday ordered 22 social networking sites, including Facebook, Google, Yahoo and Microsoft, to remove all “anti-religious” or “anti-social” contents in the next one-and-a-half-month[s] ….

Kumar had on December 20 issued summonses to the social networking sites and asked them to remove objectionable photographs, videos or texts that might hurt religious sentiments….

The websites — asked to remove objectionable contents — include Facebook India, Facebook, Google India Pvt Ltd, Google Orkut, Youtube, Blogspot, Microsoft India Pvt Ltd, Microsoft, Zombie Time, Exboii, Boardreader, IMC India, My Lot, Shyni Blog and Topix….

The Times of India reports that the material included “derogatory articles on Prophet Mohammad, Jesus Christ and Hindu gods and goddesses.” “‘The contents are certainly disrespectful to the religious sentiments and faith and seem to be intended to outrage the feelings of religious people whether Hindu, Muslim or Christian,’ the magistrate said.”

The article does not indicate whether this is somehow targeted to Indian-hosted material, or to material being asked using identifiably Indian IP addresses, or whether this would in effect require the companies to delete all material put up by anyone, given that it can potentially be accessed in India. Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

Here’s a brief summary of the incident from FIRE:

On September 12, 2011, Professor Miller [UPDATE: who is a professor of theater] posted on his office door an image of Nathan Fillion in Firefly and a line from an episode: “You don’t know me, son, so let me explain this to you once: If I ever kill you, you’ll be awake. You’ll be facing me. And you’ll be armed.” On September 16, UWS Chief of Police Lisa A. Walter emailed Miller, notifying him that she had removed the poster and that “it is unacceptable to have postings such as this that refer to killing.”

Amazed that UWS could be so shockingly heavy-handed, Miller replied by email, “Respect liberty and respect my first amendment rights.” Walter responded that “the poster can be interpreted as a threat by others and/or could cause those that view it to believe that you are willing/able to carry out actions similar to what is listed.” Walter also threatened Miller with criminal charges: “If you choose to repost the article or something similar to it, it will be removed and you could face charges of disorderly conduct.”

Later on September 16, Miller placed a new poster on his office door in response to Walter’s censorship. The poster read “Warning: Fascism” and included a cartoon image of a silhouetted police officer striking a civilian. The poster mocked, “Fascism can cause blunt head trauma and/or violent death. Keep fascism away from children and pets.”

Astoundingly, Walter escalated the absurdity. On September 20, Walter emailed Miller again, stating that her office had removed the poster because it “depicts violence and mentions violence and death.” She added that UWS’s “threat assessment team,” in consultation with the university general counsel’s office, had decided to have the poster removed, and that this poster was reasonably expected to “cause a material and/or substantial disruption of school activities and/or be constituted as a threat.” College of Arts, Humanities and Social Sciences Interim Dean Raymond Hayes has scheduled a meeting with Miller about “the concerns raised by the campus threat assessment team” for this Friday.

As a Commission, our duty is to respect both the First Amendment and the quandary this system imposes upon judicial candidates. It ain’t pretty and we should not pretend that it is. Therefore, we should give every judicial candidate the benefit of the doubt when there is any margin to do so. That’s the least the First Amendment demands and the least we can do to be fair to the judges who face this unenviable process which is necessary to ply their idealistic, supremely difficult trade.

The decision involves an interesting and difficult question of the permissible scope of restrictions on misleading candidate speech in judicial campaigns; those interested in the subject should check it out.

Thanks to How Appealing for the pointer. On Brief, Iowa’s Appellate Blog has more.

An Austrian appellate court has upheld the conviction of Elisabeth Sabaditsch-Wolff, a Viennese housewife and anti-Jihad activist, for “denigrating religious beliefs” after giving a series of seminars about the dangers of radical Islam.

The December 20 ruling shows that while Judaism and Christianity can be disparaged with impunity in postmodern multicultural Austria, speaking the truth about Islam is subject to swift and hefty legal penalties.

Although the case has major implications for freedom of speech in Austria, as well as in Europe as a whole, it has received virtually no press coverage in the American mainstream media.

Sabaditsch-Wolff’s Kafkaesque legal problems began in November 2009, when she presented a three-part seminar about Islam to the Freedom Education Institute, a political academy linked to the Austrian Freedom Party.

A glossy socialist weekly magazine, NEWS — all in capital letters — planted a journalist in the audience to secretly record the first two lectures. Lawyers for the leftwing publication then handed the transcripts over to the Viennese public prosecutor’s office as evidence of hate speech against Islam, according to Section 283 of the Austrian Criminal Code (Strafgesetzbuch, StGB). Formal charges against Sabaditsch-Wolff were filed in September 2010; and her bench trial, presided on by one multicultural judge and no jury, began November 23, 2010….

[At trial,] Sabaditsch-Wolff was convicted of … “denigration of religious beliefs of a legally recognized religion,” according to Section 188 of the Austrian Criminal Code.

The judge ruled that Sabaditsch-Wolff committed a crime by stating in her seminars about Islam that the Islamic prophet Mohammed was a pedophile (Sabaditsch-Wolff’s actual words were “Mohammed had a thing for little girls.”)

The judge rationalized that Mohammed’s sexual contact with nine-year-old Aisha could not be considered pedophilia because Mohammed continued his marriage to Aisha until his death. According to this line of thinking, Mohammed had no exclusive desire for underage girls; he was also attracted to older females because Aisha was 18 years old when Mohammed died….

Sabaditsch-Wolff appealed the conviction to the Provincial Appellate Court (Oberlandesgericht Wien) in Vienna, but that appeal was rejected on December 20….

In January 2009, Susanne Winter, an Austrian politician and Member of Parliament, was convicted for the “crime” of saying that “in today’s system” the Mohammed would be considered a “child molester,” referring to his marriage to Aisha. Winter was also convicted of “incitement” for saying that Austria faces an “Islamic immigration tsunami.”

If anyone can point me to an English translation of the opinion, or an English-language news story on the subject that adds more details, or even to the German-language original of the appellate decision, I’d love to see it. The court says she will go to prison if the fine is not paid within the next six months. She says she will take the case to the Strasbourg-based European Court for Human Rights.

I should note that Austria has indeed tried to restrict blasphemy of Christianity at least as recently as 1985, and continued to defend such a restriction until 1993 — see this post, which links to Otto-Preminger-Institut v. Austria, the European Court of Human Rights case upholding the restriction. Elsewhere in Europe (though I realize that none of this reflects on Austria as such), a Greek court convicted a cartoonist of blasphemy in 2005 for a comic book related to Jesus, but that conviction was reversed on appeal; a Polish singer was prosecuted for insulting Christianity in 2010, but that prosecution was likewise rejected on appeal; and just this year, a Russian court banned the exhibition of a painting that alleged blasphemed Christianity.

By way of perspective, several early 1800s American cases (I know of four published opinions, Ruggles, Updegraph, Kneeland, and Murray) upheld convictions for blasphemy of Christianity, sometimes based on similar facts: People v. Ruggles (N.Y. 1811), for instance, involved a defendant who had said “Jesus Christ was a bastard and his mother must be a whore,” reasoning thus:

We stand equally in need, now as formerly, of all the moral discipline, and of those principles of virtue, which help to bind society together. The people of this State, in common with the people of this country, profess the general doctrines of Christianity, as the rule of their faith and practice; and to scandalize the author of these doctrines is not only, in a religious point of view, extremely impious, but, even in respect to the obligations due to society, is a gross violation of decency and good order. Nothing could be more offensive to the virtuous part of the community, or more injurious to the tender morals of the young, than to declare such profanity lawful. It would go to confound all distinction between things sacred and profane; for, to use the words of one of the greatest oracles of human wisdom, “profane scoffing doth by little and little deface the reverence for religion;” and who adds, in another place, “two principal causes have I ever known of atheism — curious controversies and profane scoffing.” Things which corrupt moral sentiment, as obscene actions, prints and writings, and even gross instances of seduction, have, upon the same principle, been held indictable; and shall we form an exception in these particulars to the rest of the civilized world? No government among any of the polished nations of antiquity, and none of the institutions of modern Europe (a single and monitory case excepted), ever hazarded such a bold experiment upon the solidity of the public morals, as to permit with impunity, and under the sanction of their tribunals the general religion of the community to be openly insulted and defamed. The very idea of jurisprudence with the ancient lawgivers and philosophers, embraced the religion of the country….

The free, equal, and undisturbed enjoyment of religious opinion, whatever it may be, and free and decent discussions on any religious subject, is granted and secured; but to revile, with malicious and blasphemous contempt, the religion professed by almost the whole community, is an abuse of that right. Nor are we bound, by any expressions in the constitution, as some have strangely supposed, either not to punish at all, or to punish indiscriminately the like attacks upon the religion of Mahomet or of the Grand Lama; and for this plain reason, that the case assumes that we are a Christian people, and the morality of the country is deeply ingrafted upon Christianity, and not upon the doctrines or worship of those imposters.

But fortunately American free speech law has changed since then, and I’m disappointed that a European democracy such as Austria is, in the early 2000s, as intolerant of condemnation of religion — even harsh condemnation of religion — as was America in the early 1800s.

Gertz v. Robert Welch, Inc. (1974) held that even private-figure libel plaintiffs (1) may not recover proven compensatory damages unless the defendant was at least negligent in its investigation, and (2) may not recover presumed or punitive damages unless the defendant knew the statement was false or recklessly disregarded a known and substantial risk that the statements were false. The District Court in Obsidian Finance held that the defendant was not entitled to the protection of Gertz, because she was not a member of the “media.” But as I’ve argued in my forthcoming University of Pennsylvania Law Review article, Freedom for the Press as an Industry, or for the Press as a Technology? From the Framing to Today, the First Amendment has historically been understood as protecting people who use mass communications technology equally, whether or not they are members of the institutional media. I much look forward to litigating this case, and, I hope, getting the District Court decision reversed.

According to the AP,

French lawmakers easily passed a measure Thursday to make it a crime to deny the mass killings of Armenians in 1915 by Ottoman Turks amounted to genocide….

An estimated 500,000 Armenians live in France and many have pressed to raise the legal statute regarding the massacres to the same level as the Holocaust by punishing denial of genocide….

France formally recognized the killings as genocide in 2001, but provided no penalty for anyone denying that. The bill sets a punishment of up to one year in prison and a fine of euro45,000 ($59,000) for those who deny or “outrageously minimize” the killings by Ottoman Turks, putting such action on a par with denial of the Holocaust….

Turkey insists the mass killings of Armenians — up to 1.5 million, historians estimate — occurred during civil unrest as the Ottoman Empire collapsed, with losses on both sides. Historians contend the Armenians were massacred in the first genocide of the 20th century….

So denying the Holocaust has been a crime. Now this bill would make it a crime to state that the killings of Armenians weren’t genocide, apparently by analogy to the Holocaust denial laws. If this bill passes, what other claims about history, and characterizations of historical events, could be criminalized in the future, by analogy to this new prohibition? (For an example of an earlier case in which historian Bernard Lewis was held civilly liable in France for his statements about the killings of the Armenians, see here.)

Thanks to Ed Grinberg for the pointer.

The Trustees of Boston College move to quash or modify subpoenae requesting confidential interviews and records from the oral history project known as the “Belfast Project.” The subpoenae were issued by a commissioner pursuant to 18 U.S.C. § 3512, the United Kingdom Mutual Legal Assistance Treaty (“UK–MLAT”), and a sealed Order of this Court. The government asserts that the terms of the UK–MLAT requires the Court to grant its order and deny any motion to quash absent a constitutional violation or a federally recognized testimonial privilege. Boston College asks the Court to review the subpoenae under the standard set forth in Federal Rule of Criminal Procedure 17(c)(2), where “the court may quash or modify the subpoena if compliance would be unreasonable or oppressive.” This Court is asked to determine what sort of discretion an Article III court has to review or quash a subpoena brought under the authority of the UK–MLAT….

In 2001, Boston College sponsored the Belfast Project, an oral history project with the goal of documenting in taped interviews the recollections of members of the Provisional Irish Republican Army, the Provisional Sinn Fein, the Ulster Volunteer Force, and other paramilitary and political organizations involved in the “Troubles” in Northern Ireland from 1969 forward. The research also sought to provide insight into the minds of people who become personally engaged in violent conflict. As such, its progenitors saw it as a vital project to understanding the conflict in Northern Ireland and other conflicts around the world. The Belfast Project was housed at the Burns Library of Rare Books and Special Collections at Boston College. Boston College sponsored the project due to its ongoing academic interest in Irish Studies and its prior role in the peace process in Northern Ireland….

Boston College argues that the First Circuit recognizes protections for confidential academic research material and that these protections apply to the targets of the commissioner’s subpoenae….

[The] legal commitments that the United States made in approving the Treaty coincide with the general legal rule preventing journalistic or academic confidentiality from impeding criminal investigations. See Branzburg v. Hayes, 408 U.S. at 692 (rejecting “the notion that the First Amendment protects a newsman’s agreement to conceal the criminal conduct of his source, or evidence thereof, on the theory that it is better to write about crime than to do something about it”); United States v. Smith, 135 F.3d 963, 971 (5th Cir.1998) (“Branzburg will protect the press if the government attempts to harass it. Short of such harassment, the media must bear the same burden of producing evidence of criminal wrongdoing as any other citizen.”). “ ‘[T]he public … has a right to every man’s evidence,’ except for those persons protected by a constitutional, common-law, or statutory privilege.” Here, there is no recognized privilege.

As the subpoenae state, the information is sought in reference to alleged violations of the laws of the United Kingdom, namely murder, conspiracy to murder, incitement to murder, aggravated burglary, false imprisonment, kidnapping, and causing grievous bodily harm with intent to do grievous bodily harm…. These are serious allegations and they weigh strongly in favor of disclosing the confidential information….

In this case, this Court must weigh significant interests on each side. The United States government’s obligations under the UK–MLAT as well as the public’s interest in legitimate criminal proceedings are unquestioned. The Court also credits Boston College and the Burns Library’s attempts to ensure the long term confidentiality of the Belfast Project, as well as the potential chilling effects of a summary denial of the motion to quash on academic research. With such significant interests at stake, the Court will undertake an in camera review of the interviews and materials responsive to the commissioner’s subpoenae.

This Court DENIES the motions of the Trustees of Boston College to quash the commissioner’s subpoenae, and GRANTS Boston College’s request for in camera review of materials responsive to the subpoenae to the Court. This Court ORDERS Boston College to produce copies of all materials responsive to the commissioner’s subpoenae to this Court for in camera review by noon on December 21, 2011, thus allowing time for Boston College to request a stay from the Court of Appeals. Absent a stay, this Court promptly will review the materials in camera and enter such further orders as justice may require.

This strikes me as correct as a matter of First Amendment law, and indeed an application of the standard principles that would generally apply to domestic criminal investigations; I don’t see the court restricting First Amendment rights in the name of international agreements here. Still, it struck me as an interesting and noteworthy example of how First Amendment questions sometimes arise in treaty cases.

[Viewing] “the evidence and the inferences that may reasonably be drawn therefrom in the light most favorable to the nonmoving party[,]” … Novotny had a “long history of hostility” with his Uncle Virgil Novotny (Virgil) and with Roger Turnquist, Virgil’s neighbor and political ally. Virgil was a member of the Tripp County Commission, and Turnquist was a member of the Tripp County Weed Board. Novotny was openly critical of the Tripp County Commission, writing letters to the local newspaper and speaking at commission meetings. Virgil approached the local newspaper and ordered it to stop publishing Novotny’s letters. Virgil advised the newspaper editor that if the newspaper continued to publish Novotny’s letters, Tripp County would use another newspaper for the publication of legal notices….

Novotny’s First Amendment claim is based on his allegation that Virgil threatened to vote to withdraw county publication business from the newspaper if it continued to publish Novotny’s letters to the editor. The district court granted appellees’ motion for summary judgment on this claim because the court found no evidence that Virgil was acting on behalf of the county when he issued his ultimatum. The trial court further concluded that, even if Virgil was an agent of the county, any potential damage claim would belong to the newspaper.

In his appeal, Novotny argues that the district court erred in its First Amendment analysis. However, we find no error in the district court’s conclusion that Novotny failed to establish a violation of his First Amendment rights. At oral argument, Novotny’s counsel conceded that an individual does not possess a constitutional right to require that a privately owned newspaper publish his letter to the editor. Indeed, a contrary rule would infringe upon the right of the newspaper itself to decide what content it includes on its own editorial page. Accordingly, any potential First Amendment claim arising from Virgil’s threats to the newspaper belong to the newspaper and not to Novotny. See Warth v. Seldin, 422 U.S. 490, 499 (1975). We agree with the district court that Novotny has failed to establish standing to pursue any First Amendment claim. Therefore, the dismissal of Novotny’s First Amendment claim was proper.

I don’t think that’s right, given Bantam Books v. Sullivan, a 1963 Supreme Court case. In Bantam Books, a government agency threatened bookstores with possible prosecution if they carried books published by Bantam Books; here, a government agency allegedly threatened a newspaper with possible loss of government business if it carried letters written by Novotny. The two situations strike me as similar for standing purposes; perhaps there might be a substantive difference, for instance if a court concludes that loss of government business based on what a newspaper publishes is substantively permissible under the First Amendment. But from the perspective of standing to litigate these substantive First Amendment questions, the two cases seem similar.

And here is what Bantam Books said about standing (paragraph breaks added):

Appellants’ standing has not been, nor could it be, successfully questioned. The appellants have in fact suffered a palpable injury as a result of the acts alleged to violate federal law, and at the same time their injury has been a legal injury. The finding that the Commission’s notices impaired sales of the listed publications, which include two books published by appellants, establishes that appellants suffered injury. It was a legal injury, although more needs be said to demonstrate this. The Commission’s notices were circulated only to distributors and not, so far as appears, to publishers. The Commission purports only to regulate distribution; it has made no claim to having jurisdiction of out-of-state publishers. However, if this were a private action, it would present a claim, plainly justiciable, of unlawful interference in advantageous business relations. It makes no difference, so far as appellants’ standing is concerned, that the allegedly unlawful interference here is the product of state action.

Furthermore, appellants are not in the position of mere proxies arguing another’s constitutional rights. The constitutional guarantee of freedom of the press embraces the circulation of books as well as their publication, and the direct and obviously intended result of the Commission’s activities was to curtail the circulation in Rhode Island of books published by appellants.

Finally, pragmatic considerations argue strongly for the standing of publishers in cases such as the present one. The distributor who is prevented from selling a few titles is not likely to sustain sufficient economic injury to induce him to seek judicial vindication of his rights. The publisher has the greater economic stake, because suppression of a particular book prevents him from recouping his investment in publishing it. Unless he is permitted to sue, infringements of freedom of the press may too often go unremedied. Cf. NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 459.

Change “publisher” to “letter writer,” “distributor” to “newspaper,” “economic stake” to “personal stake,” and “book” to “letter,” and Bantam Books seems pretty close to this case on the standing question. Or am I missing something?

UPDATE: Note that El Dia, Inc. v. Rossello (1st Cir. 1999) held that withdrawing government advertising from a newspaper based on the newspaper’s views was indeed unconstitutional, though one can certainly imagine plausible arguments to the contrary. But my point in this post is simply that the court didn’t even reach this question — it avoided it by saying that Novotny had no standing to make the First Amendment argument, and that, I think, is not correct given Bantam Books.

William Lawrence Cassidy is charged with violating the federal antistalking statute, 18 U.S.C. § 2261A by “with the intent to harass and cause substantial emotional distress to a person … us[ing] an interactive computer service … to engage in a course of conduct that caused emotional distress to that person, to wit: the posting of messages on www.twitter.com and other Internet websites concerning [Alyce Zeoli].” (For details about Cassidy’s tweets and post, see the criminal complaint.)

Here’s the backstory:

Born in Canarsie, Brooklyn, Ms. Zeoli is considered to be a reincarnated master in the Tibetan Buddhist religious tradition, and is known to her followers as Jetsunma Ahkon Lhamo. She is an avid Twitter user, with 23,000 followers. A representative for Ms. Zeoli said she declined to be interviewed for this article.

According to the F.B.I. and Ms. Zeoli’s lawyer, Mr. Cassidy also claimed to be a reincarnated Buddhist when he joined Ms. Zeoli’s organization, Kunzang Palyul Choling, in 2007. He signed up using a false name and claimed to have had lung cancer, they said. Ms. Zeoli’s organization cared for him and, briefly, even appointed him to its executive team [as Chief Operating Officer]. The relationship soured after they came to doubt his reincarnation credentials and found that his claims of cancer were false. Mr. Cassidy left.

After Cassidy left, he started saying insulting things about Zeoli online, ultimately with over 8000 tweets over the span of several months. A few could be seen as potentially threatening, e.g., “ya like haiku? Here’s one for ya: ‘Long, Limb, Sharp Saw, Hard Drop’ ROFLMAO.” But the complaint isn’t limited to those, or even mostly focused on them; it also includes statemento like, “[Zeoli] is a demonic force who tries to destroy Buddhism,” “[Zeoli]: somebody throw a couple shots of gin in the bitch & get her back on twitter: shes fun 2 play with,” and “[Zeoli] is no dakini: shes a grossly overweight 61 yer old burnt out freak with bad bowels & a lousy outlook: her ‘crown’ is a joke.” And the statute under which Cassidy is prosecuted is by no means limited to threats — the relevant provisions generally ban

engag[ing] in a course of conduct [using the mail or interactive computer services] that causes substantial emotional distress to [a] person” “with the intent to … harass … or cause substantial emotional distress to [that] person.”

And here’s a brief summary of the court decision:

1. The judge rightly concludes that “the only portion of Section 2261A(2)(A) mentioned in the Indictment amounts to a content-based restriction” on speech, “because it limits speech on the basis of whether that speech is emotionally distressing.”

2. The judge rightly suggests that statements made about a person to the public at large are constitutionally protected even if, when said to a particular person on a one-to-one basis (as through a telephone call or an individually targeted e-mail), they might be punishable.

3. The judge concludes that, even if — assuming for the sake of argument — the statute were constitutional in some situations as to statements made to the public at large, it would not be constitutional as applied to “individuals engaging in political debates or critiques of religious leaders.” That too strikes me as correct. I don’t think the statute would be constitutional as to speech to the public even outside political and religious debates, at least when the speech isn’t a threat or libel or otherwise unprotected under the existing First Amendment protections (and the judge doesn’t hold that the statute would be constitutional in such cases). But I do think that the statute certainly is unconstitutional as to such speech to the public when it relates to political and religious questions, as it does here.

4. The judge concludes that he need not decide whether the statute is unconstitutional on its face, because the defendant wins on the grounds that the statute is unconstitutional as applied.

So this strikes me as a substantial victory for free speech; I do not know whether the government will appeal. For more, see this New York Times article by Somini Sengupta.

A Hamline University professor said Wednesday that hiring [former Republican gubernatorial candidate] Tom Emmer would have been a bad business decision for the school, while Emmer said “political bigotry” in higher education is discriminating against people with conservative views like his….

Asked whether the decision not to hire Emmer had anything to do with faculty concerns about his political views, [Hamline spokeswoman JacQui] Getty said Hamline would have no comment beyond a statement … [that] said “there were conversations” about Emmer joining the faculty but “no finalized agreement.”

Jim Bonilla, an associate professor in Hamline’s business school, said he wrote to McCarthy with concerns about Emmer’s appointment and that he knows of two other professors, outside the business school, who raised concerns with Hanson.

He said he doesn’t know whether faculty concerns about Emmer factored in the administration’s decision not to hire him.

For Bonilla, listed on the school’s website as a consultant on diversity in higher education and the founding director of “Race, Gender & Beyond” program, there is a business case and a social justice case to be made against Emmer.

In terms of business, he pointed to fallout from gay-rights groups after Target Corp. donated $150,000 to a political fund that in turn supported Emmer.

And hiring someone stridently opposed to gay rights goes against the school’s ethic of nondiscrimination and works against training the staff does on creating safe spaces for gay and lesbian students, Bonilla said.

“That would be money wasted,” he said. Not hiring Emmer allows Hamline to make a decision “congruent with our values and a sound business decision,” Bonilla said….

Despite the school’s statement that there was no agreement to hire him, Emmer said “there is no question” he was hired for the teaching job and that there was an agreement in principle on the “executive in residence” position….

For an e-mail that apparently supports Emmer’s view that he had indeed been hired (“I am the new Department Chair under which Business law falls. For the spring we are offering a session during the day and Tom Emmer is going to teach it.”), see this Minnesota Public Radio site. There’s also more from the Hamline Oracle, the university student newspaper, here and here. The latter item notes that, “Business Professor David Schultz … said that after staff began hearing about the possibility of Emmer joining the Hamline faculty, e-mails were drafted by some staff members to be sent to administration outlining their concerns over the hiring of Emmer.

“Schultz said that the faculty was concerned for two major reasons, including whether the political positions Emmer holds were incompatible with the university’s mission, specifically his stance on same-sex marriage.

“The second concern stemmed from the way Emmer was possibly being hired. Staff were being told that he was simply selected by McCarthy, which goes against the faculty handbook, Schultz said. The procedures for new hires includes a hiring committee and faculty review, which was not happening at the time faculty heard the rumors that Emmer was being hired.”

If the university did indeed refuse to hire Emmer because of his views on same-sex marriage, that would be a very serious breach of traditional and sound academic freedom norms, and a sign that the Hamline business school is seeking to be an ideological cocoon — for its faculty and its students — rather than a place where debate and academic freedom are genuinely present and valued. Of course it would send a pretty poor message to its students, who would rightly wonder whether a faculty that does this to an appointments candidate would likewise retaliate against students who express unorthodox opinions. And naturally it would have an effect far beyond the question of same-sex marriage: Students and prospective family members who see an institution being willing to exclude someone who shares the same views as about half the country would likely worry even more that it would exclude or retaliate against people who have (certain kinds of) less popular views.

Of course, this is a big “if”: We know what Prof. Bonilla believes about how the university should deal with dissenting viewpoints on the subject, and we have heard from Prof. Schultz about what “some staff members” thought, but we don’t know whether this was indeed part of the business school’s decision. I would like to know more about whether the business school takes the same approach to academic freedom and diversity of views that Prof. Bonilla does.

[UPDATE: The senator's spokesman now states, according to the Greeley Gazette, "that any legislative action would probably begin with a resolution. 'We haven’t made a final decision, we have heard from Lowe’s and they want to work something out.' When asked if the legislation mentioned could eventually develop into legal sanctions of some type, [the spokesman] said ‘I don’t think he has that in mind. It just depends. We’re taking this one step at a time.’” But the senator’s letter to Lowe’s apparently stated, “If Lowe’s continues its religious bigotry, I will encourage boycotts of Lowe’s and look into legislative remedies” — which appears to threaten something more than just a “resolution.” The rest of the post assumes that the threat was indeed a threat of coercive government action and not just of legislative speech. Thanks to commenter Adam Steinbaugh for the pointer to the Greeley Gazette article.]

It seems to me that every company has the First Amendment right to disassociate itself from TV programs, newspapers, magazines, and the like that it finds objectionable. To be sure, the First Amendment has been held to apply less strongly to commercial advertising than to other speech, and in particular the Court has held that the government may outlaw ads that state a discriminatory preference for prospective employees or, presumably, customers; see Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Relations (1973), which the Court has also cited favorably since then. Ragin v. New York Times Co. (2d Cir. 1991) has also held that the Fair Housing Act may impose liability for housing advertising campaigns that don’t include any black models because of “a race-conscious decision” on the advertisers’ part, though the Supreme Court hasn’t spoken to the question. But I take it that there’s no claim here that Lowe’s is trying to deliberately chase away Muslim customers (as opposed to in the real estate context, where it is more plausible that some advertisers might have consciously wanted to have fewer blacks moving into their developments).

Rather, the claim is that Lowe’s is refusing to advertise on a program that sends a positive message about Islam in America. And that decision not to support a particular ideological message — whether motivated by Lowe’s management’s disagreement with the message, or just a decision that this message is too controversial for Lowe’s to endorse — strikes me as part of Lowe’s First Amendment prerogatives. And of course the analysis would be the same if an advertisers wanted not to advertise on a pro-Scientology program, or on a pro-atheism program (think a militantly anti-religious and advertiser-supported version of Penn & Teller’s Bullshit), or on an evangelical Christian broadcasting network. Likewise, some jurisdictions ban discrimination in places of public accommodation, including stores, based on political affiliation; but advertisers have the right to refuse to advertise in pro-Republican or pro-Democrat or pro-Communist or pro-Nazi magazines.

This reflects, I think, the advertiser’s right to be free from associating with, and from funding, political, religious, and ideological messages, which strikes me as a matter that is entitled to full First Amendment protection rather than just the more limited protection offered to commercial speech. Note that United States v. United Foods, Inc. (2001) held that producers were entitled to refuse to even pay money towards a commercial advertising campaign with which the producers’ names weren’t even associated. It strikes me as even more clearly true that producers are entitled to refuse to pay money towards funding an entertainment program with an ideological message, especially when the producers’ names would be associated with the program.

This having been said, the exact constitutional scope of antidiscrimination law as applied to commercial advertisers is not fully clear, and United States v. United Foods, Inc. is itself in some tension with Glickman v. Wileman Brothers & Elliott, Inc. (1997), which United Foods distinguished but didn’t overrule; perhaps a court will conclude that any proposed Michigan “legislative action” against Lowe’s in this case is thus constitutional. But I doubt that it would be so seen, and I don’t think that it should be so seen.

As to the merits of Lowe’s action, it’s hard to tell for sure without having seen the program. But if the program simply depicts American Muslims as ordinary Americans who go about their lives as both good Muslims and good Americans — much as other programs depict American Jews and American Christians the same way — then it seems to me that the campaign to shut off advertising to the program does reflect religious intolerance, and Lowe’s should be faulted for giving in to the campaign. Still, I think that it’s Lowe’s constitutional right to do so.

By the way, note the takeaway practical lesson for businesses, for better or worse: The smart move for advertisers is not to advertise in the first place on programs that might prove politically or religiously controversial, especially if the programs are likely to have relatively small audiences. The decision not to advertise can be made for many possible reasons, and it will be hard to create much outrage about such a decision, even if the suspicion is that the advertiser doesn’t want to be associated with (say) a show that depicts Muslims as normal Americans. But once the advertisement is bought, the decision to advertise is visible, and may alienate one segment of customers. And any decision to pull the advertisement will also be visible, and will thus alienate another segment of customers. So an economically rational advertiser will likely choose not even to experiment with advertising on programs such as this, since any experiment will be very expensive to back out of. Thanks to Ed Grinberg for the pointer.