Posts Tagged ‘First Amendment’

Bar ethics complaint against Kellyanne Conway

Fifteen professors recently filed a misconduct complaint against Kellyanne Conway with a D.C. bar disciplinary committee over things she has said in support of President Trump. Prominent legal ethicist Steve Lubet argues — and I agree — that this “dangerously misguided” complaint would set a terrible precedent if it somehow succeeded. Last week Paul Alan Levy, the First Amendment lawyer with Public Citizen, came to the same conclusion: bar panels have no business going after people who happen to be lawyers over their political speech. The complaint is an irresponsible stunt, and should be tossed out ASAP. More: Maya Noronha, Fed Soc Blog.

Constitutional law roundup

  • Congress’s enumerated powers don’t extend to making this local bar fight a federal hate crime [Ilya Shapiro on Cato brief in United States v. Metcalf, Eighth Circuit]
  • On this point, at least, history’s verdict went with President Andrew Johnson: Congress can’t entrench Cabinet officers if the President no longer wants them to serve [Mental Floss]
  • “Video: Ilya Shapiro on judicial abdication and the growth of government” [Acton Institute]
  • “Our decision is about the First Amendment, not the Second.” Eleventh Circuit en banc strikes down Florida law restricting doctors’ speech with patients about guns [Eugene Volokh; quote is from Pryor concurrence in Wollschlaeger v. Governor]
  • In the mail: paperback reissue of Michael Stokes Paulsen and Luke Paulsen, The Constitution: An Introduction [Basic]
  • “Federal Appeals Court Nixes Blanket Drug Screening of State College Students” [Jacob Sullum]

Judge blocks California law on publishing actors’ ages

“A federal judge has barred the State of California from enforcing a new law limiting online publication of actors’ ages.” The actor’s union SAG-AFTRA, the measure’s chief advocate, had aimed it against online movie database IMDB, claiming that the goal of preventing employment discrimination outweighed any First Amendment concerns about banning publication of truthful information. A judge disagreed. [Josh Gerstein, Politico; Eugene Volokh; Gabrielle Carteris/Hollywood Reporter]

Omaha restaurateur on trial for tweet

Omaha restaurateur John Horavatinovich tweeted a security cam picture of two 17-year-olds turned away trying to buy beer at his establishment with an accompanying comment that included the word “sting.” Now he’s on trial on misdemeanor charges of obstructing a government operation. His lawyers argue that he had no way of knowing whether the teenagers were working with authorities, since they did not declare themselves. The case is now in the hands of jurors. [WOWT]

P.S.: Compare this 2012 post, “Judge: flashing headlights to warn of speed trap is protected speech [under First Amendment].”

Follow-up: verdict Not Guilty.

Higher education roundup

  • Student claims public college required him to mouth correct views regarding social justice as part of class. Not since Barnette v. West Virginia you don’t [Ilya Shapiro and Devin Watkins on Cato amicus brief in Felkner v. Rhode Island College (“The First Amendment prohibits government actors from compelling private citizens to express views with which they disagree.”)]
  • In the mail: KC Johnson and Stuart Taylor, Jr.’s “The Campus Rape Panic: The Attack on Due Process at American Universities” [Encounter Books; review, Robert VerBruggen; plus excerpt; interview with Taylor] “The Title IX Mess: Will It Be Reformed?” [KC Johnson, Minding the Campus]
  • Departing Obama administration revises Common Rule on IRB/institutional review board human subjects protection [NEJM, Verrill Dana redline via Michelle Meyer, Zachary Schrag first, second, third posts on implications for social science research]
  • Notwithstanding early reports, PEN America report on campus expression mounts “unflinching defense of free speech” [Anthony Fisher, Vox; related, José Cabranes/Washington Post and Orin Kerr]
  • U.K.: graduate sues Oxford for negligent teaching, wants £1 million [Lowering the Bar, more links at Paul Caron/TaxProf]
  • When should you report classmates to the Syracuse University administration? Suspect behavior includes “avoiding or excluding others,” “telling jokes based on a stereotype,” “posting or commenting on social media related to someone’s identity in a bias matter,” “imitating someone’s cultural norm or practice” [guidelines (from mission statement: “never privatize any wrongful act, no matter how small”) via Robby Soave]

Eugene Volokh vs. Deborah Rhode on hostile environment and ABA 8.4(g)

At last month’s Federalist Society National Lawyers Convention, Eugene Volokh debated Deborah Rhode on whether hostile environment law on and off campus often violates the First Amendment. The discussion also got onto Model Rule 8.4 (g), adopted by the American Bar Association a few months ago, which makes it “professional misconduct” for an attorney to engage in “conduct,” including verbal “conduct,” that “the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.” Can bar disciplinary committees be trusted not to apply this language to politically incorrect expression by lawyers, including in pedagogical settings such as law school and continuing legal education (CLE)? [Josh Blackman, Francis Pileggi]

Related: ABA president Linda Klein says hate speech “cannot be tolerated.” [Scott Greenfield] And a Eugene Volokh podcast for the Federalist Society on 8.4.

Free speech roundup

  • Tomorrow (Tues., Dec. 6) Cato Digital presents panel discussion “Free Speech in the Age of Trump” with Flemming Rose, Nick Gillespie, and Kat Murti [register or watch live online]
  • Eventually, Supreme Court will have to consider a First Amendment challenge to cyberbullying laws [ABA Journal]
  • Tactical use of libel suits cries out for remedy, but some remedies that are being proposed are hard to square with federalism [Sasha Moss, R Street]
  • Bill pending in Congress to protect consumer reviews (Yelp, etc.) would allow special restrictions on speech “inappropriate with respect to race, gender, sexuality, ethnicity, or other intrinsic characteristic” which could prove an ominous precedent [Eugene Volokh]
  • Is there a prospect for sanctions should Donald Trump sue the press for defamation? [Eric Turkewitz, pre-election if that matters]
  • Count the ways: “The government has double standards about freedom of speech” [Hans Bader]

“You Have a Constitutional Right to Record Public Officials in Public”

Ilya Shapiro and Devin Watkins:

In a case out of California, two citizens were taking pictures of border crossings from public sidewalks of what they believed were environmental problems and unlawful searches. CBP [United States Customs and Border Protection] agents saw them, arrested them, seized their cameras, and deleted their pictures. The district court acknowledged that the recordings were protected by the First Amendment but found the government’s reasons for suppressing them to be so compelling that individual constitutional rights could be ignored in the name of national security.

Now before the U.S. Court of Appeals for the Ninth Circuit, Cato has filed an amicus brief supporting the photographers’ ability to record government officials in public. Americans have a First Amendment right to record law enforcement agents because it’s a way of accurately depicting government operations. The ability to describe government operations allows citizens to criticize those actions and petition for redress of grievances—a core purpose of the First Amendment. Even a Homeland Security report on “Photographing the Exterior of Federal Facilities” recognizes “that the public has a right to photograph the exterior of federal facilities from publically accessible spaces such as streets, sidewalks, parks and plazas.”…

The Ninth Circuit will hear Askins v. U.S. Dep’t of Homeland Security later this fall.

Free speech roundup

  • “EEOC to Gadsden Flag Lovers: Shut Up or Face Costly Lawsuits” [Hans Bader]
  • Ellen de Generes raises First Amendment defense in suit by real estate agent with joshed-over name [Ronald Collins]
  • Background: in England (generally unlike U.S.), tasteless jokes and online insults have been prosecuted as crime [Guardian on moves there to classify “misogyny” as hate crime]
  • Melania Trump’s defamation suit against U.K.-based Daily Mail is filed in Maryland, also names obscure blogger from that state [Mike Masnick, TechDirt]
  • Tale of ginned-up out-of-state defamation lawsuit meant to aid in “reputation management” takedowns gets even weirder [Paul Alan Levy, earlier]
  • University of Tennessee, a public institution, cites First Amendment in dropping probe of Prof. Glenn Reynolds over controversial tweet [Robert Shibley, FIRE]