Both ironic and disturbing: rejecting a First Amendment defense, a New York court says city and state public accommodation law may forbid the left-wing National Lawyers Guild from turning down (in line with its position favoring an Israel boycott) an attempt from a group based in West Bank Israeli settlements to buy an ad in its awards banquet program [Eugene Volokh]
Posts Tagged ‘First Amendment’
Michael McConnell on the Masterpiece Cakeshop case
The Stanford law professor has penned “Dressmakers, Bakers, and the Equality of Rights” for the forthcoming volume “Religious Freedom, LGBT Rights, and the Prospects for Common Ground” (William N. Eskridge, Jr. and Robin Fretwell Wilson, eds. 2018). [SSRN, Volokh] Abstract:
Using recent examples involving dressmakers refusing to create designs for the First Lady at the Trump inauguration, this paper explains why Masterpiece Cakeshop should be decided in favor the baker who refuses to create a wedding cake for a same-sex wedding ceremony, and why this should be understanding as an equality of rights, rather than prioritizing free speech over nondiscrimination.
Earlier on Masterpiece Cakeshop here.
Compelled marketplace speech and the First Amendment
California law compels “crisis pregnancy centers” whose mission is to provide alternatives to abortion to advise clients that the state of California offers free or low-cost abortion, contraception, prenatal counseling, and other services to eligible women. An instance of compelled speech that rises to the level of a First Amendment violation? [Ilya Shapiro as part of SCOTUSblog symposium on NIFLA v. Becerra; Shapiro, Trevor Burrus, and Meggan DeWitt, Cato]
Related: Courts should apply strict scrutiny to compelled-disclosure laws requiring firms to disparage own products or take part in public debate [Shapiro and DeWitt on cert petition in CTIA v. Berkeley, on Berkeley, Calif. law requiring cellphone vendors to warn customers of radio frequency exposures even though the FCC has found no scientific evidence to link to any illness]
That sign will get you in trouble, you know
Gilmanton, New Hampshire: residents who put up lawn and window signs critical of the town administration “got letters from the local building inspector warning that their posters violated the local zoning code and potentially state political advertising disclosure laws” and mentioning $275/day fines [New Hampshire Public Radio]
February 28 roundup
- Eighth Circuit Cato amicus defends right of videographer couple in Minnesota not to film same-sex weddings for hire if they don’t care to [Ilya Shapiro and Reilly Stephens] Meanwhile: “California Court Upholds First Amendment Right Not to Bake Cake for Same-Sex Wedding” [Eugene Volokh, who takes a different side from Cato on expressive status of cake creation]
- “It’s all about the shared love for Disney.” Is that why they’re suing? [Hugo Martin, Los Angeles Times]
- “Whistleblower Lawyers See a Growth Area: Customs Fraud” [Henry Cutter, WSJ]
- Supreme Court hears oral argument in Janus, the public employee union fees First Amendment case [Ilya Shapiro/Washington Examiner, SCOTUSBlog coverage by various authors, Amelia Thomson-DeVeaux/538, earlier]
- Copyright: “US Judge dismisses Taylor Swift ‘haters’ case as too ‘banal'” [Mark Savage, BBC]
- Dangerous for an advice letter from an NLRB lawyer to say that references to gender-based differences in James Damore memo “were discriminatory and constituted sexual harassment” Ken at Popehat, Robert VerBruggen/NRO, Jerome Woehrle]
Free speech roundup
- You don’t have to think porn’s OK, or that speech never does harm, to see that Ross Douthat’s censorship ideas will fall flat on their face [Rick Garnett/Prawfs, Taylor Millard/Hot Air quoting me, Elizabeth Nolan Brown, Tyler Cowen]
- Group libel theory meets nationalism in Europe’s censorship creep: “Poland Passes Bill Criminalizing Claims Of Its Complicity In The Holocaust” [Colin Dwyer/NPR, Eugene Volokh, Jacob Sullum]
- “Arizona Bar Accuses Libel Lawyers of Suing Fake Defendants” [Eugene Volokh; related Paul Alan Levy]
- First Amendment should protect t-shirt shop that refused to print gay pride message [Ilya Shapiro on Cato amicus in Hands-On Originals case, involving Lexington, Ky. anti-discrimination law; earlier here, etc.]
- Federal judge rules Electronic Frontier Foundation need not obey an Australian court order directing it to take down a “Stupid Patent of the Month” blog post, finding the order “repugnant to the United States Constitution.” [Kurt Opsahl, EFF]
- “First Amendment Watch is a project of the Arthur L. Carter Journalism Institute at New York University. Our mission is to document threats to the First Amendment freedoms of speech, press, assembly, and petition, all rights that are critical to self-governance in a democratic society….First Amendment Watch is an online news and educational resource for journalists, educators and students.”
Second Circuit: Schneiderman can unmask private group’s donors
At least since 1958’s NAACP v. Alabama, it has been thought settled that state demands for the disclosure of private organizations’ membership and donor lists poses very real risks of First Amendment infringement to which courts must be sensitive. Recent years, however, have seen concerted efforts to strip anonymity from donors to at least some non-profit groups with a policy emphasis. One danger — or feature, from the standpoint of some groups doing the campaigning — is that if target groups can be made to divulge such information, their supporters can be exposed to pressure, shaming, and public and private retaliation.
Kamala Harris, then Attorney General of California and now Senator from that state, did not fare well in court in such a campaign while in state office, but New York’s left-leaning Attorney General Eric Schneiderman seems to be enjoying better luck in a similar push. A Second Circuit panel has ruled in favor of his demands for the donor lists of Citizens United, the conservative group whose role in a landmark First Amendment case at the Supreme Court has made it, along with that case, “the Emmanuel Goldstein of the American left.” It will not be surprising if the Supreme Court is soon asked to reaffirm the protections of NAACP v. Alabama. [Trevor Burrus and Reilly Stephens, Cato, and thanks for mention; see also my April 2016 Cato piece]
Colleges and anonymous chat
The Yik Yak app is gone, but it leaves behind an important pending Fourth Circuit case on the First Amendment limits of Title IX [Ilya Shapiro on Cato amicus brief in Feminist Majority Foundation v. University of Mary Washington]
“Colorado: Where Anyone Can Squelch Political Speech”
“Colorado’s byzantine system of campaign and political finance regulations not only [turns] a blind eye to First Amendment concerns, but actively incentivizes politically motivated, retaliatory litigation. Colorado is unique in being the only state to effectively outsource enforcement of its campaign finance regulations by allowing ‘any person who believes’ that campaign finance laws are being violated” to initiate litigation by filing a complaint. Now a court is considering an outside group’s motion to seal the records of one such case. Opening up such proceedings to public scrutiny could work to counteract abuse by documenting the law’s chilling effect and its use to squelch the speech of opponents, as in the case at issue, in which a local citizen found herself denounced to authorities after buying a newspaper ad commenting on a slate of candidates in a school board election. [Trevor Burrus and Meggan DeWitt on Cato objection, jointly with Reason Foundation, in Holland v. Williams]
Court strikes down overbroad Illinois ban on stalking/cyberstalking
Illinois “stalking” and “cyber-stalking” statutes criminalize (among other things),
- “knowingly engag[ing] in [2 more or acts] directed at a specific person,”
- including “communicat[ing] to or about” a person,
- when the communicator “knows or should know that this course of conduct would cause a reasonable person to”
- “suffer emotional distress,” defined as “significant mental suffering, anxiety or alarm.”
The statute expressly excludes, among other things, “an exercise of the right to free speech or assembly that is otherwise lawful.”
Despite that last exclusion, the Illinois Supreme Court struck down the provisions as unconstitutionally broad under the First Amendment. (The Cato Institute and the Marion B. Brechner First Amendment Project had filed an amicus brief). Shouldn’t Illinois lawmakers have known better? [People v. Relerford]