- Howard Dean, in hole re: grasping legal status of “hate speech,” keeps digging [Eugene Volokh (“No, Gov. Dean, There Is No ‘Hate Speech’ Exception to the First Amendment”), more (Chaplinsky and “fighting words”), Ronald K.L. Collins (will Dean publicly debate Volokh?]
- White House Chief of Staff Reince Priebus gets asked on a talk show about Trump’s much-criticized hopes for libel law. Did he say much that was new? [Volokh]
- “Don’t Compel Doctors to Promote State-Favored Programs” [Ilya Shapiro and Thomas Berry on Cato amicus brief supporting Supreme Court certiorari in National Institute of Family & Life Advocates v. Becerra]
- “Newspapers and magazines tend to bury stories about libel settlements. Don’t want to give readers ideas.” [@jackshafer on Twitter]
- Until courts definitively smack down New York Attorney General Eric Schneiderman’s war on wrongful climate advocacy, this interim freedom-of-information win is nice [CEI] Related: Leo Doran, Inside Sources.
- First “alternative facts,” now this: “Students Have an ‘Alternate Understanding’ of the First Amendment.” [Stephanie Castellano, Newseum]
Posts Tagged ‘First Amendment’
FIRE podcasts on free speech
Some recent installments in the FIRE (Foundation for Individual Rights in Education) podcast series So To Speak, hosted by Nico Perrino: Bob Corn-Revere on “censorship: the bastard child of technology”; Flemming Rose of Cato, formerly with Denmark’s Jyllands-Posten; Sam Gedge of the Institute for Justice on campaign finance laws and the First Amendment; the “heckler’s veto” strikes Heather Mac Donald; Geoffrey Stone of Chicago Law on “Sex and the Constitution”.
Montana legislature: ABA, take a hike with that 8.4 rule
In passing Senate Joint Resolution 15, the Montana legislature has expressed its view that it would be unconstitutional for the state to adopt the ABA’s controversial Model Rule 8.4(g), which purports to ban “discrimination” and “harassment” in the legal profession in such a way as to cut into rights of lawyers’ speech and association, some of them distinctive to their role as client advocates [text, status Gavel to Gavel] Eugene Volokh has more here. We’ve previously linked Volokh’s debates with prominent lawyers on the subject, and here’s another, under Federalist Society auspices, this time against Robert Weiner of Arnold & Porter. Earlier here, here, etc.
“Can the police retaliate against a citizen for refusing to answer police questions?”
Orin Kerr at Volokh Conspiracy sorts through the complications of a Fifth Circuit case that has arguable Fifth, Fourth, and First Amendment angles.
Higher education roundup
- U.S. Department of Education and Title IX: “The Office for Civil Rights Is Still Out of Control” [KC Johnson]
- Mobility penalty: “The residency requirement in Cuomo’s free tuition plan makes a bad idea worse” [Beth Akers]
- Loyalty oaths? Many colleges now require diversity statements for hiring and promotion [George Leef] Public college expels nursing student for breach of professional ethics code that includes ideological commitments, Supreme Court should review [Ilya Shapiro and David McDonald/Cato, Eugene Volokh on petition for certiorari in Keefe v. Adams]
- Maryland lawmakers move to bar colleges from asking applicants about criminal records [WYPR; Michael Dresser, Baltimore Sun]
- “Colleges and the First Amendment” [video, Federalist Society panel with Michael McConnell, Philip Hamburger, et al.] Eugene Volokh presentation on free speech on campus Reason video, etc.
- “Torch the miscreant, resanctify the community.” Laura Kipnis attends a Title IX trial [Chronicle of Higher Education, (from her forthcoming book); more at Reason]
Third Circuit: neighbors who criticized condo residents over emotional support dogs must face civil rights suit
In blog posts and comments, two residents of a Virgin Islands condominium complex criticized two other residents who were (in line with rights prescribed to them under federal law) keeping emotional-support dogs despite a no-dog rule in the complex. Among other statements, one or the other of the two said dog owners would be “happier in another community,” speculated that “diploma mill” paperwork could certify any canine whose owner cared to claim stress, suggested the complex should “lawyer up” and be prepared to go to court to defend its rule against “known violators,” and proposed the dog owners be “ostracized” by other residents.
The dog-owning residents sued the neighbors, along with the condo association and other defendants. They cited federal legal interpretations, which have since been buttressed by a regulation issued in the Obama administration, that hold it “hostile environment harassment” under the Fair Housing Act to make statements that “interfere” with another’s exercise of rights under the law.
Now the Third Circuit, as part of a decision resolving numerous issues about the case, reversed grants of summary judgment in favor of the two blog writers and ruled that they could properly be sued for damages for creating a hostile environment under the Fair Housing Act. It described as “harassment” various instances of their critical speech and noted that a single instance of harassing speech could give rise to liability under the law. It is not clear whether the parties raised, and the court did not make any gesture toward considering, whether some or all of the statements involved might be protected by the First Amendment, which is mentioned nowhere in the opinion. [Revock v. Cowpet Bay West Condominium Association et al., see relevant section VI, pp. 31-41 of opinion via John Ross, Short Circuit]
As Hans Bader of the Competitive Enterprise Institute has pointed out, the Ninth Circuit in 2000 slapped down federal officials for having investigated Berkeley, Calif. residents who had fought a housing project that they believed would bring mentally ill residents or recovering substance abusers (both protected as disabled under the Fair Housing Act) to their neighborhood. “It found this principle was so plain and obvious that it denied individual civil rights officials qualified immunity for” having investigated the citizens. That case [White v. Lee] would appear to stand for the proposition that the First Amendment provides robust protection for much speech that criticizes, opposes, and disparages others’ exercise of rights under the Fair Housing Act, and that the speech does not lose protection just because others regard it as retaliatory or discouraging to the exercise of rights.
More: Hans Bader, Scott Greenfield, and Eric Goldman, who got to the case before either of us.
Cash discount OK; credit surcharge not OK
New York Business Law § 518 “prohibits merchants from imposing a ‘surcharge’ on customers who use credit cards, but allows for a ‘cash discount.’ To put it simply: the law allows stores to advertise ‘discounts’ for paying cash, but makes it a crime to advertise an economically equivalent ‘surcharge’ for paying with plastic.” The Supreme Court ruled late last month that by penalizing a merchant for its description of a transaction rather than for a transaction itself, the law triggered First Amendment scrutiny. So that’s a victory, if in the circumstances a narrowly limited one, for the modern trend toward serious First Amendment scrutiny of restrictions on commercial speech [Ilya Shapiro and Frank Garrison on Expressions Hair Design v. Schneiderman]
Eleventh Circuit: First Amendment protects right to label skim milk as “skim milk”
Florida law allows the sale of skim milk without vitamin A and D fortification but requires that it be sold under the name “imitation milk product.” Ochiltree Creamery, a business that views the addition of other than natural ingredients as contrary to its mission, was willing to put warnings on its all-natural skim milk alerting buyers to the absence of vitamin fortification, but resisted the law’s demand that it label the product something other than “skim milk.” The Eleventh Circuit ruled that the state had not met its burden under the First Amendment. [Eugene Volokh, Baylen Linnekin, Frank Garrison]
“Opening up” libel law, cont’d
It is not clear whether a Thursday tweet from President Donald “Sue the Press” Trump should be interpreted as a serious policy proposal as distinct from an irritable gesture, but if its logic were pursued it might suggest that the chief executive favors extending defamation liability to coverage that is incomplete as opposed to untruthful and would have been fairer if it included points to be made on behalf of a covered personage. That’s not how defamation works under current First Amendment law, though [Jacob Sullum; earlier on Trump and libel]
Social media “right to be forgotten”
A First-Amendment-hostile concept pioneered in Europe, the “right to be forgotten,” rears its head in the New York assembly, though it looks unlikely to go anywhere soon [Eugene Volokh, Scott Shackford/Reason, earlier]