“A federal court judge Monday ruled a Massachusetts General Law prohibiting the secret audio recording of police or government officials is unconstitutional. …In the 44-page decision [Judge Patti] Saris declared that ‘secret audio recording of government officials, including law enforcement officials, performing their duties in public is protected by the First Amendment, subject only to reasonable time, place and manner restrictions.'” [Noah Bombard, MassLive]
- Fourth Circuit rejects gag order on parties and potential witnesses in North Carolina hog farm litigation [Eugene Volokh]
- Eighth Circuit, interpreting Missouri law’s obligation to register as “lobbyist,” leaves open possibility that requirement extends to unpaid lobbyists, also known as concerned citizens [Jason Hancock, Kansas City Star; Institute for Free Speech on Calzone v. Missouri Ethics Commission]
- “9 Months in Prison for Forging Court Orders Aimed at Vanishing Online Material” [Volokh] Per one account at least 75 fake court documents have been sent to Google as part of takedown efforts, including an order purporting to come from the UK Supreme Court [same]
- The accused pipe bomber had made online death threats against Ilya Somin, libertarian lawprof and friend of this site. Lessons to draw? [Cato Daily Podcast, more]
- Entanglement of press and state leads nowhere good: Canadian government to allocate C$600 million in subsidies to newspapers and legacy media [Stuart Thomson, National Post; earlier on press subsidies here, here; some Canadian background from 1983]
- Court: First Amendment doesn’t protect Comcast from bias charge over its decision not to carry block of black-owned TV channels [Jon Brodkin, ArsTechnica]
- Georgia woman jailed for three months after field drug test misidentifies contents of plastic bag in her car, which she had told disbelieving officers contained blue cotton candy [WMAZ] Related: Georgia “Drug Recognition Expert” officers sometimes arrest drivers who are sober [Brendan Keefe and Michael King, WMAZ in January]
- “What I call the four forces of the regulatory state — regulation by administration, prosecution, and litigation; and progressive anti-federalism—operate mostly independently of Congress, notwithstanding the legislative branch’s constitutional power to ‘regulate Commerce … among the several States.'” [Jim Copland, City Journal]
- Rights of associational privacy: Bradley Smith of the Institute for Free Speech comments on the ongoing relevance on the 60th anniversary of NAACP v. Alabama [Cato Daily Podcast with Brad Smith and Caleb Brown]
- “If you’ve flown on a major airline within the past 7 years, you might be cashing in” although the settlement website admits it’s “possible that ticket buyers will never get any money from the lawsuit” owing to fees and expenses [KMBC]
- To argue for freedom, sometimes it makes sense to argue for things other than freedom [Jonathan Rauch on same-sex marriage and medical marijuana controversies, quotes me; David Henderson/EconLib]
- “The Eleventh Circuit takes a tour through the history of copyright and the nature of authorship in exploring whether the state of Georgia can assert copyright in its annotated state laws and thereby prevent a nonprofit from making them available for free online. (It can’t.)” [John Kenneth Ross, IJ “Short Circuit,” on Code Revision Commission v. Public.Resource.Org]
Animal-welfare regulation vs. rights of expression: “State and federal falcon-speech regulations fall into four categories: (1) generally banning images of falcons in all expression that is not about falcons; (2) specifically banning commercials that feature falcons but are not about falcons; (3) limiting compensation for falcon-related expression; and (4) dictating the content of falcon education programs.” So many different First Amendment problems there, and now “a new lawsuit filed by Pacific Legal Foundation on behalf of the American Falconry Conservancy and its members aims to strike down those anti-speech regulations.” [Jim Manley, Pacific Legal]
A federal judge has ruled the National Rifle Association can proceed with its First Amendment suit against New York Gov. Andrew Cuomo over his pressure on regulated banks, insurers to cut ties with gun rights advocacy groups like the NRA. “U.S. District Judge Thomas McAvoy questioned Cuomo’s claim that his messages about the wisdom and propriety of providing financial services to the NRA amount to nothing but legitimate regulatory oversight and protected government speech.” [Jacob Sullum and background, Eugene Volokh] “It is well-established under binding federal appeals court decisions that government officials like Cuomo are not allowed to pressure organizations or businesses to cut off services to someone because of their political stances or expression — even when the government official uses informal pressure as opposed to explicit threats. (See, e.g., Rattner v. Netburn, 930 F.2d 204 (2d Cir. 1991)).” [Hans Bader] Earlier here, here and here (ACLU files amicus brief defending NRA’s rights), etc.
- Repercussions of Supreme Court’s Janus ruling on bar associations’ compulsory extraction of dues from nonmembers [Maxine Bernstein, Oregonian] “State Supreme Court calls a ‘timeout’ for Washington Bar Association to review its rules” [Steve Miletich, Seattle Times] “ABA Model Rule 8.4(g) Cannot Survive the Supreme Court’s Recent Decisions in NIFLA and Matal” [Kim Colby, Federalist Society, earlier on rule banning some types of speech and expression by lawyers on anti-discrimination grounds]
- Pardoned former sheriff Joe Arpaio sues New York Times for libel [Quint Forgey, Politico; Joe Setyon, Reason; over the years]
- When may governments boycott private companies’ output because those companies promote disapproved ideas? [Eugene Volokh, more]
- First Amendment has consistently foiled Donald Trump’s designs against critics’ speech [Jacob Sullum; related, David Henderson] “The culture of free speech has been deteriorating for long enough that politics, sadly and predictably, is catching up.” [Matt Welch] “Threats of violence discourage people from participating in civic life. This is an unusually good opportunity to deter them.” [Conor Friedersdorf during Ford-Kavanaugh episode]
- “Fighting Words and Free Speech” [John Samples] “A New Podcast on Free Speech: Many Victories, Many Struggles” [same on Jacob Mchangama podcast series]
- “U.K. Supreme Court: Baker Doesn’t Have to Place Pro-Gay Marriage Message on Cake” [Dale Carpenter, Peter Tatchell, Lee v. Ashers]
[J]ust after Twitter and Facebook appeared before Congress, the DOJ released a statement saying that it was investigating whether or not actions by the big internet companies was “intentionally stifling the free exchange of ideas.” The full statement was short and to the point:
We listened to today’s Senate Select Committee on Intelligence hearing on Foreign Influence Operations’ Use of Social Media Platforms closely. The Attorney General has convened a meeting with a number of state attorneys general this month to discuss a growing concern that these companies may be hurting competition and intentionally stifling the free exchange of ideas on their platforms.
The competition question is one that the DOJ’s antitrust division clearly has authority over, but alarms should be raised about the DOJ or state AGs arguing that these platforms are “stifling the free exchange of ideas on their platforms.” Because while — on its face — that might sound like it’s supporting free speech, it’s actually an almost certain First Amendment violation by the DOJ and whatever state AGs are involved.
There are lots and lots of cases on the books about this, but government entities aren’t supposed to be in the business of telling private businesses what content they can or cannot host. Cases such as Near v. Minnesota and Bantam Books v. Sullivan have long made it clear that governments can’t be in the business of regulating the speech of private organizations — though those are both about regulations to suppress speech.
More: “How Regulating Platforms’ Content Moderation Means Regulating Speech – Even Yours” [Cathy Gellis]; John Samples, Cato Daily Podcast on Trump’s comments about Google searches; Federalist Society debate on social media antitrust; “if you’re going to make an allegation that there’s a big [anti-conservative] conspiracy [on search engine results], you should do your due diligence.” [Zachary Graves] Earlier here, etc.
On Monday the Cato Institute published its annual Cato Supreme Court Review for the 2017-18 Supreme Court term. Included is my 7,000-word article on the Supreme Court’s cases last term on partisan gerrymandering, Gill v. Whitford (Wisconsin) and Benisek v. Lamone (Maryland). Several people have told me that I managed to make a dry and complicated subject understandable and even entertaining, which I take as the highest compliment.
The entire CSCR is online, and here are its contents. I assisted in the editing of the pieces by Joseph Bishop-Henchman on the Internet sales tax case South Dakota v. Wayfair, and by Jennifer Mascott on the government-structure case Lucia v. SEC.
FOREWORD AND INTRODUCTION
ANNUAL KENNETH B. SIMON LECTURE
The Administrative Threat to Civil Liberties by Philip Hamburger
IMMIGRATION AND NATIONAL SECURITY
The Travel Bans by Josh Blackman
The Ghost Ship of Gerrymandering Law by Walter Olson
THE CRIMINAL LAW
Katz Nipped and Katz Cradled: Carpenter and the Evolving Fourth Amendment by Trevor Burrus and James Knight
Class v. United States: Bargained Justice and a System of Efficiencies by Lucian E. Dervan
THE FIRST AMENDMENT AND THE CULTURE WARS
Masterpiece Cakeshop: A Romer for Religious Objectors? by Thomas C. Berg
NIFLA v. Becerra: A Seismic Decision Protecting Occupational Speech by Robert McNamara and Paul Sherman
FEDERALISM AND GOVERNMENT STRUCTURE
Internet Sales Taxes from 1789 to the Present Day: South Dakota v. Wayfair by Joseph Bishop-Henchman
“Officers” in the Supreme Court: Lucia v. SEC by Jennifer Mascott
Looking Ahead: October Term 2018 by Erin E. Murphy
I’ve been critical of the ACLU lately but its amicus-brief defense of the NRA’s First Amendment rights against New York Gov. Andrew Cuomo’s strong-arm use of insurance and bank regulation is vital, timely, and right:
Public officials are, of course, free to criticize groups with which they disagree. But they cannot use their regulatory authority to penalize advocacy groups by threatening companies that do business with those groups. And here the state has admitted, in its own words, that it focused on the NRA and other groups not because of any illegal conduct, but because they engage in “gun promotion” — in other words, because they advocate a lawful activity.
Substitute Planned Parenthood or the Communist Party for the NRA, and the point is clear. If Cuomo can do this to the NRA, then conservative governors could have their financial regulators threaten banks and financial institutions that do business with any other group whose political views the governor opposes. The First Amendment bars state officials from using their regulatory power to penalize groups merely because they promote disapproved ideas.
- Getting together to do a national We’re-Not-The-Enemy-Of-The-People Day might not play to the strengths of an independent press [Jack Shafer; New York Post on why it did join, and L.A. Times on why it didn’t] Kevin Williamson wishes that many in the institutional press were more than just fair-weather friends of free speech values [NRO]
- ““Racial Ridicule” Is a Crime in Connecticut — and People Are Being Prosecuted” [Eugene Volokh]
- “Can Fake News Be Regulated?” Federalist Society policy brief video with Thomas Arnold;
- Once you get past the headline, Adam Liptak’s NYT account of First Amendment differences at the Supreme Court is well done [Roger Pilon]
- Is Internet freedom failing? [Knight Institute symposium with Jack Goldsmith et al.] How does moderation actually work at leading social media firms? [Kate Klonick, Harvard Law Review]
- The ABA’s Model Rule 8.4(g), in the name of combating harassment and discrimination, encourages states to regulate many expressions of speech and association by lawyers that have incidental professional implications. The Supreme Court in its recent NIFLA v. Becerra decision cast a shadow on that [Josh Blackman, Scott Greenfield]