“In America, we’ve got First Amendment that controls what a government can do and by the same token it does not control what a newspaper can do, a radio station can do or what a social media platform can do,” said Walter Olson, a Senior Fellow at the Libertarian Cato Institute’s Robert A. Levy Center for Constitutional Studies.
In other words, social media platforms are private companies, and can, therefore, choose how to label content. Still, there have been concerns raised about political bias among these independent fact-checkers, and others concerned that pushing things underground or offline may breathe new life into conspiracy theories.
“There has always been a strong argument that the way to refute bad ideas is to get them out there so people can shoot at them,” Olson said in an interview Monday. “Air them out, put some sunshine against them, it’s healthy against a virus too, and against the virus [of] a thought.”
“A case awaiting acceptance by the Supreme Court challenges required fees paid by attorneys to State Bar of Wisconsin. Much of that money then goes to fund extensive lobbying. Trevor Burrus and Andrew Grossman comment.” [Cato Daily Podcast with Caleb Brown on Jarchow v. State Bar of Wisconsin, distributed for Supreme Court conference of May 15; earlier]
From Institute for Justice’s “Short Circuit”: “Using publicly available descriptions of property boundaries, startup company draws lines on satellite photos, which helps its customers, community banks, visualize their property assets and identify issues (such as a property’s legal description not describing a completed shape). Mississippi regulators: That is the unlicensed practice of surveying, a civil and criminal offense. Fifth Circuit: There is no occupational speech exception to the First Amendment. The startup’s challenge should not have been dismissed. (This is an IJ case.)” In the 2018 case of NIFLA v. Becerra, the Supreme Court rejected a former doctrine that lower levels of First Amendment protection applied to “professional speech.” “The Board’s expansive regulatory theory would allow it to shut down Google Maps, Zillow and other map-based apps.” [Institute for Justice case page]
- Certificate-of-need laws in 38 states restrict hospital bed capacity by giving competitors a lever to object. More beds would have helped with emergency preparedness [Jeffrey Singer; more from Eric Boehm; bed crisis feared within weeks]
- White House, Congress negotiate on liability-limit measure aimed at freeing up 31 million expired but usable masks; “3M and Honeywell don’t feel comfortable providing them without assurances they won’t be sued.” [Michael Wilner, McClatchy; latest on HHS proclamation] Between death, business interruption, and enormous disruption to business practice, a landscape of litigation opens up [Bob Van Voris et al., Fortune]
- Proposed executive order would bar import of critical medical supplies from China, closing supposed “loophole” that could save your loved one’s life as shortages of ventilators loom [Ana Swanson, New York Times; Greta Privitera, Politico Europe on triage decisions at Italian hospitals reeling under equipment shortages]
- Courts canceling jury trials as virus spreads [Eric Turkewitz] Supreme Court building closes to public until further notice;
- Newark, N.J. threatens to prosecute persons who make false statements about the pandemic [Mike Masnick, TechDirt (“a masterclass in how not to deal with the problem of misinformation about the coronavirus”); Eugene Volokh (while some kinds of lies can be criminalized consistent with the First Amendment, many of those relevant here cannot]
- Memo to HR: EEOC has advised “that taking the temperature of all employees may violate the ADA under some circumstances, but has indicated that the rules may change during a pandemic” [Daniel Schwartz; employee temperature checks in Singapore]
Like a number of other states, Wisconsin by law requires lawyers to join and pay dues to its state bar, which takes stands on controversial issues. Two earlier SCOTUS cases upheld mandatory bar rules. Has the Janus decision changed that? [Deborah La Fetra, Ilya Shapiro, and Trevor Burrus on Cato certiorari brief in Jarchow v. State Bar of Wisconsin; Alison Frankel, Reuters; Eugene Volokh (in second case seeking certiorari, Fleck v. Wetch, Eighth Circuit rejected challenge to North Dakota dues; and note update that Supreme Court has denied certiorari in that North Dakota case); earlier here (Louisiana challenge), here, here (Texas)]
Everyone knew this was the state of the law, and highly unlikely to change, but conservative commentator Dennis Prager had many of his followers hoping otherwise. A Ninth Circuit panel has now ruled that YouTube is not a state actor and that its marketing of itself as a forum featuring diverse viewpoints was opinion and not false advertising. [Nancy Scola, Politico; Eugene Volokh; Prager University v. Google; earlier (many channels not identified with conservative ideas saw far higher shares of their content placed in parental-control category than did Prager); Jonathon Hauerschild, American Legislative Exchange Council last January (YouTube not “public forum” for legal purposes)]
In the 2018 Janus decision, the Supreme Court ruled that the First Amendment protects individual public employees from having to financially support unions to which they do not wish to belong. But labor law continues to require “exclusive representation”; individual public employees may not bargain on their own behalf in place of the designated union, nor may they enlist a different union to represent their interests. (Meanwhile, and also problematically, incumbent unions are tasked with a legal duty to represent individual employees even if they reject membership and decline to pay dues.) Jonathan Reisman is an economics professor at the University of Maine-Machias who does not wish to be represented by the recognized faculty union, which he does not believe represents his own priorities either on work-specific issues such as wages and schedules or on public policy more broadly. Reisman is now seeking Supreme Court review of his action seeking relief from exclusive representation on First Amendment grounds [Trevor Burrus and Michael Collins on Cato certiorari amicus brief in Reisman v. Associated Faculties of the University of Maine]
Josh Blackman spots an article in the ABA Journal proposing a new ABA Model Rule 8.5 that would declare it “a lawyer’s professional responsibility to promote equality in society generally, diversity in the legal profession specifically, and encourage lawyers to devote 20 hours annually to activities directed toward promoting diversity in the profession.” Blackman writes:
The [proposed] Rule adopts a specific philosophical viewpoint–promoting diversity and inclusion–and makes it the orthodoxy for attorneys. Under this proposed rule, those who do not adopt that philosophy will be violating a “duty” and “ethical obligation.” Those who choose not to attend certain CLE classes would now be disregarding an aspirational goal….
Not every attorney agrees that “every lawyer has a professional duty to undertake affirmative steps to remedy de facto and de jure discrimination, eliminate bias, and promote equality, diversity and inclusion in the legal profession.” Far too many attorneys–especially academics–take this statement as an unassailable fact of life. It’s not.
Bar associations exist to promote and regulate the legal profession. They do not exist to promote specific ideologies.
Compare ABA Model Rule 8.4(g), which Blackman and many others have argued is a step toward an unconstitutional speech code for attorneys, and the mandatory statements of support for diversity, equity and inclusion in the University of California system and elsewhere in higher education.
An opinion by the Fourth Circuit sees a big difference between legal representation of unions or complainants — idealistic, pro-rights, good in short — versus legal representation of businesses. Is that so? And should the role of the First Amendment apply equally across the two cases? I explore the case of Capital Associated Industries Inc. v. Stein, from North Carolina, in a new post at Cato at Liberty.
Racial activist Deray Mckesson led a Black Lives Matter demonstration in Baton Rouge, Louisiana that illegally occupied a roadway; in the ensuing confrontations, an unidentified person threw a missile that seriously injured a police officer. Can the officer sue Mckesson for lawbreaking acts that foreseeably created dangerous conditions that led to his injury?
In August a panel of the Fifth Circuit ruled unanimously that the First Amendment did not block such a suit; earlier this month the panel reissued an altered opinion after one of its members, Judge Don Willett, changed his mind and wrote a partial dissent finding Mckesson to have a First Amendment defense. [Jonathan Adler, Volokh Conspiracy] Central to the constitutional issues at play here is the 1982 case of NAACP v. Claiborne Hardware, in which a unanimous Supreme Court held that the First Amendment can bar the imposition of civil liability on organizers of protests even when some participants commit, or threaten, acts of violence.
Eugene Volokh has now written a series of posts on the case. Part I asks: why didn’t Mckesson’s lawyers invoke doctrines precluding recovery by rescue professionals (“firefighters’ rule”) to bar the officer’s claim? Part II is on the tort law side of the case (independent of the First Amendment angle), and so far as I can see Volokh and Willett reach different conclusions. In Part III, Volokh addresses the First Amendment issues, in the light of precedents like Claiborne Hardware. While the analysis is not a simple one, Volokh is “inclined to say that the First Amendment doesn’t require” immunity for foreseeable civil harms resulting from unlawful blocking of public roads as a protest.