Your Elected Officials Just Kicked the First Amendment Square in the Nuts.

And don’t even think about whining about it. Source.

Here’s the text of HR 347, the festering shitburger your government passed and your president signed. Kids, this is no longer an issue of politics and which party sucks more. HR 347 passed with overwhelming support.

P.S. Did you know the G8 Summit this spring has been moved from Chicago to Camp David?

CNN Debate: Should FCC Boot Rush Limbaugh From the Airwaves?

On the side of kicking him off the air, Jane Fonda, Robin Morgan and Gloria Steinem.

On the side of protecting his right to free speech, Marc J. Randazza.

This is not the same debate over whether the subject of his diatribe has a valid defamation claim against him. I wrote about that here.

For the Last Time, NO, Sandra Fluke does not have a valid defamation claim against Rush Limbaugh

Why we have a First Amendment; Show Your Love for It

When I hear Rush Limbaugh’s voice, I want to vomit. I despise just about everything that pill-addled, hate-spewing, disgusting piece of human tripe has ever said. The thought of him being thrown off the air and silenced forever makes me swoon with joy. A man can dream, after all.

But, as a First Amendment lawyer, nay First Amendment fetishist, I realize that when I feel this way about a speaker, it is time for me to make sure that I am acutely protective of that speaker’s right to peddle his wares in the marketplace of ideas. Whether it is the Ku Klux Klan, Mike (the Situation” Sorrentino, the American Nazi Party, Glenn Beck, Gail Dines, the Westboro Baptist Church, The Jonas Brothers, Ann Bartow, Creed, Jack Thompson, or anyone else whose stall in the marketplace of ideas smells as if a hungover bull who had eaten too many spoiled Jamaican beef patties took a crap in it, I take a deep breath and for a small and twisted moment, I savor the aroma. The speech that tests our commitment to free speech – that’s the really good stuff. That’s the stuff that we need to affix shields, sharpen swords, and stand next to our brothers and sisters in arms to protect.

I Must Defend Rush Limbaugh

It is for the above reason that I must stand up to defend Rush Limbaugh. House Minority Whip Steny Hoyer came out and said that Sandra Fluke should sue Limbaugh for defamation for famously calling her a “slut.” (source). And a Philadelphia attorney, Max Kennerly, told his local newspaper that he thinks Fluke has a case. (source)

She has no such thing, and shame on those who say that she does. It isn’t that Rush Limbaugh needs to be shielded from these barbs. It isn’t that Sandra Fluke actually might be emboldened to sue. The problem with these uneducated and erroneous statements about the viability of such a suit is that they act like a blizzard wind blowing through the marketplace of ideas. They spread misinformation among the proletariat, who didn’t have the benefit of an education in Constitutional law, and consequently believe Fluke might have a claim based on Rush’s impolitic statements. And the next time one of these moronic proles gets butthurt about something someone says, they’ll be right on the phone to the closest bottom feeding lawyer they can find. (Example)

Spreading ignorance about defamation law makes the marketplace of ideas just that much more chilly, just that much more dangerous, and just that much more likely to be hit with a bomb by some opportunistic ambulance-chaser teamed up with a thin-skinned professional victim so that he or she can get paid for his or her mere “butthurt.” Butthurt is not defamation. Butthurt is butthurt, and you don’t get paid for that in the United States of America. Not on my watch.

Sandra Fluke is a Public Figure

When you purposely inject yourself into public debate, you lose your status as a “just minding my own business” private citizen.

When a plaintiff alleging defamation is a public figure, he or she must show that the allegedly false statements were made with actual malice – that is, knowing falsity, or a reckless disregard for the truth. N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964); Town of Massena v. Healthcare Underwriters Mut. Ins. Co., 779 N.E.2d 167, 171 (N.Y. 2002). Such public figures can include limited-purpose public figures who “have thrust themselves into the forefront of particular public controversies in order to influence the resolution of the issues involved.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1974).  It is not necessary for a plaintiff to be a household name to be a public figure, either; he or she may be a limited-purpose public figure within a certain community for the same public figure standards to apply. Huggins v. Moore, 726 N.E.2d 456, 460 (N.Y. 1999).  It is not even necessary for a public figure to seek the limelight to be held to this standard – it is possible to be a public figure by mere circumstance, rather than concerted effort. See Gertz, 418 U.S. at 345 (“it may be possible for someone to become a public figure through no purposeful action of his own”).

Fluke was testifying before Congress, on National TV, in a debate that she willingly ran toward. She purposely dove into the spotlight, and if the spotlight burned her, that’s her problem — not my beloved Constitution’s problem.

As a public figure, in order to prevail in a defamation case, Fluke must prove the “actual malice” on Limbaugh’s part. While Fluke probably thinks that the statements were “malicious” (and they certainly were), “actual malice” has a precise legal meaning, i.e.; known falsity or a reckless disregard for the truth. See Sullivan, 376 U.S. 254 (1964):

[There is] a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks …

The purpose of the First Amendment is to ensure the unfettered exchange of ideas among the American people. See Roth v. United States, 354 U.S. 476, 484 (1957). The First Amendment does not demand politeness, fairness, nor that debate should be measured and soft. In fact, the First Amendment provides ample breathing room for political discourse to get nasty, unfair, and brutish. See Sullivan, 376 U.S. 254. Furthermore, the First Amendment does not require that every statement be 100% objectively true, nor does it allow defamation suits to continue just because a statement is false, or implies a nasty falsehood.

Further, there is a reason why public figures need to meet a higher standard than ordinary people. When you jump into a boxing ring, you can’t whine when the other guy punches you in the face. And, when you step onto the gladiatorial sands of public political debate, you’re going to just need to accept that people who disagree with you are going to say nasty things about you. If you can’t stand the heat, don’t go running into the kitchen.

Wah! But Rush Limbaugh called her a “prostitute.”

No. No he didn’t.

Yes, literally, Rush Limbaugh said that Sandra Fluke was a “prostitute.” However, it should not take too high of a degree of sophistication to understand the difference between actually accusing someone of being a harlot of the night, who takes money for sex, and calling someone a prostitute in the exercise of rhetorical hyperbole.

Even his “factually sounding” statements must be taken in context.

“She wants to be paid to have sex. She’s having so much sex she can’t afford contraception. She wants you and me and the taxpayers to pay her to have sex.”

“If we are going to pay for your contraceptives, thus pay for you to have sex, we want something for it, and I’ll tell you what it is: We want you to post the videos online so we can all watch.”

Even these are hyperbolic and not “false statements of fact.”

When it comes to defamation, it is not a simple matter of (False Statement) + (Angry Plaintiff) = Defamation. Context is everything. See Greenbelt Coop. Pub. Ass’n. v. Bresler , 398 U.S. 6 (1970) (when it is apparent, in the context of a statement, that its meaning is figurative and hyperbolic, the falsity of the literal meaning does not equal a knowing falsehood or reckless disregard for the truth, thus a public figure can not prove actual malice as a matter of law).

In Dworkin v. L.F.P, Inc., 839 P.2d 903 (Wyo. 1992), Hustler Magazine called Andrea Dworkin inter alia a “shit-squeezing sphincter” and “a cry-baby who can dish out criticism but clearly can’t take it,” Id. at 915.

Under prevailing constitutional First Amendment safeguards, that language cannot, as a matter of law, form the basis for a defamation claim…We agree with that said by the Ninth Circuit Court of Appeals: “Ludicrous statements are much less insidious and debilitating than falsities that bear the ring of truth. We have little doubt that the outrageous and the outlandish will be recognized for what they are.” Dworkin v. Hustler, 867 F.2d at 1194. Vulgar speech reflects more on the character of the user of such language than on the object of such language. Curtis Publishing Co. v. Birdsong, 360 F.2d 344, 348 (5th Cir. 1966). Id. at 915-916.

The law is clear that defamation law is not there to protect anyone from annoying speech, embarrassing speech, vigorous epithets, or mere vitriolic spewings of a fat pill-addled blowhard bastard.

Posner wrote that rhetorical hyperbole “is a well recognized category of, as it were, privileged defamation.” Dilworth v. Dudley, 75 F.3d 307, 309 (7th Cir. 1996); See also Lifton v. Bd. of Educ. of the City of Chicago, 416 F.3d 571, 579 (7th Cir. 2005) (Illinois law requires that an allegedly defamatory statement must contain an objectively verifiable factual assertion); Pease v. Int’l Union of Operating Engineers Local 150, et al., 208 Ill.App.3d 863, 153 Ill.Dec. 656, 567 N.E.2d 614, 619 (1991) (“Words that are mere name calling or found to be rhetorical hyperbole or employed only in a loose, figurative sense have been deemed nonactionable.”).

It is implausible for Limbaugh’s statements about Fluke, even if appearing to be factual upon facile review, to be interpreted as actual facts.  When a reader – or in the case, listener – would not interpret a statement as factual, it constitutes rhetorical hyperbole, which is not actionable as defamation.  Letter Carriers v. Austin, 418 U.S. 264, 283 (1974); Greenbelt, 893 U.S. at 14 (characterizing conduct as “blackmail” was, in context, non-actionable rhetorical hyperbole).  “Statements that can be interpreted as nothing more than rhetorical political invective, opinion, or hyperbole are protected speech.” Burns v. Davis, 196 Ariz. 155, 165, 993 P.2d 1119, 1129 (Ariz. App. 1999).  Even where defamation defendants have made statements that could be interpreted as factual – a claim of rape, Gold v. Harrison, 962 P.2d 353 (Haw. 1998), cert denied, 526 U.S. 1018 (1999), or a statement that someone behaved “unethically,” Wait v. Beck’s North America, Inc., 241 F. Supp. 2d 172, 183 (N.D.N.Y. 2003) – courts have protected this expression as non-defamatory.  

The fact that these statements were made by Rush Limbaugh, the man who coined the term “feminazi” and constantly bemoans the mere continued existence of liberal feminists to a conservative, politically aware radio audience, denudes his description of Fluke as a “prostitute” of any capacity for defamation.  No reasonable person would interpret Limbaugh’s statement to be factual, and it fits safely under the umbrella of rhetorical hyperbole.

Ok, Rush called her a “slut” – that’s defamation per se!

Wrong again, Skippy.

For most of our history, stating or implying that a woman was unchaste would give rise to a claim for defamation per se. In fact, in recent history, a number of courts have specifically held that describing a woman as a “slut” is defamatory per se. See, e.g., Bryson v. News Am. Publs., 672 N.E.2d 1207, 1221 (Ill. 1996); Howard v. Town of Jonesville, 935 F.Supp 855, 861 (W. D. La. 1996) (stating that a woman is “sleeping with everyone” at her place of employment and is incapable of performing her job duties “would appear to be defamatory on its face”) (punctuation and footnote omitted); Smith v. Atkins, 622 So.2d 795, 800 (La. Ct. App. 1993) (calling a woman a “slut” is defamatory per se).

However, I believe that this theory is a throwback to the days when women were essentially the sexual property of their controlling male. A daughter who was unchaste became less valuable to her father, and a wife that was unchaste was less valuable to her husband.

The times they are a changin’…

In 2005, an ex-girlfriend of KISS lead singer Gene Simmons sued after VH1 ran a “rockumentary” in which she was portrayed, she claims, as an “unchaste woman.”

The plaintiff, Georgeann Ward, said that a portrayal of her as promiscuous was defamatory. The defendants argued that “changing social mores could affect how certain sexual conduct is viewed by the community, and that what was defamatory at one time may no longer be the case.”

While the New York state court refused the defendants’ motion to dismiss the lawsuit, the judge did suggest that the proper “legal authority or social science data” might convince a court that saying a woman is promiscuous is no longer automatically defamatory. The two sides have since settled, but I believe that this is an accurate portrayal of modern thought. Things might be different in Mississippi or other third world jurisdictions, but a case brought in DC (where I would imagine the claim would be brought) would likely be examined through 20th century, and not antebellum, eyes.

Professor Lisa Pruitt of the University of California at Davis School of Law said that although it might be more difficult for a woman to sue today when she is defamed in a sexual manner, the change in the law is “a net gain for women because it signifies, through law’s expressive function, that women’s most important attribute is no longer their sexual propriety.” (source)

Accordingly, it would be awfully ironic to hear someone supposedly championing women’s rights arguing that defamation law should stop its march forward and that a sexist standard should be applied to her suit.

Absent such a bold maneuver, this element would probably wither under scrutiny as a statement of protected opinion.

What is the standard for someone to accurately and factually be described as a slut? Clerks suggests that if a woman performs oral sex on 37 men, that this might be the line. I really don’t know. I think that most women would say that the line is well below 37. Then again, I wouldn’t really call any woman a slut (unless it was a term of endearment – some women giggle when you call them that). I just don’t make value judgments about someone’s sexuality. If a woman or a man is promiscuous and they are happy, they can be a slut if they want (or not).

In other words, “slut” is properly regarded as little more than a statement of opinion. But see Bryson, 672 N.E.2d at 1221; Howard, 935 F.Supp at 861; Smith, 622 So.2d at 800.

“Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries, but on the competition of other ideas. But there is no constitutional value in false statements of fact.” Gertz, 418 U.S. at 339-40. An alleged defamatory statement “must be provable as false before there can be liability under state defamation law.” Milkovich v. Lorain Journal Co., 497 U.S. 1, 19 (1990).

The term “slut” has different meanings to different people. C.f. McCabe v. Rattiner, 814 F.2d 839, 842 (1st Cir. 1987) (finding that the term “scam” “means different things to different people . . . and there is not a single usage in common phraseology. While some connotations of the word may encompass criminal behavior, others do not. The lack of precision makes the assertion ‘X is a scam’ incapable of being proven true or false.”); Lauderback v. Am. Broad. Cos., Inc., 741 F.2d 193, 196 (8th Cir. 1984) (insurance agent referred to as a “crook”). “Clearly, if the statement was not capable of being verified as false, there could be no liability for defamation.” Woodward v. Weiss, 932 F. Supp. 723, 726 (D.S.C. 1996). As such, a term with such diffuse and subjective meaning, colored and even defined by the reader’s life experiences, is incapable of precise definition. Like “short,” “ugly” or “fat,” slut is a word that is given its meaning by those who use it – a fact that the participants of SlutWalks around the world in 2011 would be quick to cite. Absent something really bizarre happening in Court, I can’t see a court, in this day and age, allowing a defamation claim based on the term “slut.”

Conclusion

This incident is unfortunate for those on the Left who have, at least since 2000, considered their side of the aisle to be the place where free speech can feel safe and secure. It has exposed the liberal and academic Left to be as hypocritical and as bad as the dirty Right wing when it comes to free speech. Remember when Democratic elected officials condemned Bill Maher for calling Sarah Palin a “cunt?” No, me either) Sandra Fluke’s statements were worthy of some criticism, and I lobbed some of my own. Rush Limbaugh could have done a much better job of criticizing Ms. Fluke. But, the fact is that those on the left, defamation lawyers trolling for clients, and Rush Limbaugh haters alike have set aside their desire to understand or support free expression in a hysterical pile-on of the prick from Palm Beach. They are all wrong. They are not only wrong on the law, but they are also morally wrong because someone, somewhere out there is listening to them — and will believe that when someone gets butthurt, that they are a victim, and that someone has to pay for their thin-skinned indignation in court.

And then we all lose.

Sheriff Mike Scott vs. The Media (again)

Lee County, Floriduh: Sheriff Mike Scott, (who I wrote about here) didn’t like being questioned about a federal lawsuit filed against his department. To show everyone that he’s boss, he decided that the Fort Myers News Press will no longer have the right to ask questions at press conferences, and he’s decided to severely limit press access to his department. (source)

Apparently, this is not the first time that Mike Scott has thrown a temper tantrum at the media.

D.C. Judge Smokes out a First Amendment Violation

Don't Bogart our First Amendment Rights

The “Family Smoking Prevention and Tobacco Control Act”, Pub. L. No. 111-31, 123 Stat. 1776 (2009) gave the FDA the authority to regulate the manufacture and sale of cigarettes and other tobacco products. Under that law, Congress mandated that the DHHS must “issue regulations that require color graphics depicting the negative health consequences of smoking.” It also required that the top 50% of all cigarette packages, and the top 20% of all cigarette advertising, must carry one of the following messages with graphic images.

WARNING: Cigarettes are addictive.
WARNING: Tobacco smoke can harm your children.
WARNING: Cigarettes cause fatal lung disease.
WARNING: Cigarettes cause cancer.
WARNING: Cigarettes cause strokes and heart disease.
WARNING: Smoking during pregnancy can harm your baby.
WARNING: Smoking can kill you.
WARNING: Tobacco smoke causes fatal lung disease in nonsmokers.
WARNING: Quitting smoking now greatly reduces serious risks to your health.”

The graphic images would rotate according to an FDA approved plan and include color images of a parade of anti smoking horribles, such as a picture of a man exhaling cigarette smoke through a tracheotomy hole in his throat, a plume of cigarette smoke enveloping an infant receiving a kiss from his or her mother, pairs of diseased lungs, a diseased mouth with cancerous lesions, a premature baby in an incubator, etc.

Naturally, the cigarette companies filed suit. The regulations seemed to be a clear example of government compelled speech. On Feb. 29, Judge Leon agreed. R.J. Reynolds Tobacco Co. v. United States FDA, 2012 U.S. Dist. LEXIS 26257 (D.D.C. Feb. 29, 2012). In analyzing the claim, Judge Leon laid out a concise history of compelled speech jurisprudence.

A fundamental tenant of constitutional jurisprudence is that the First Amendment protects “both the right to speak freely and the right to refrain from speaking at all.”Wooley, 430 U.S. at 714. A speaker typically “has the autonomy to choose the content of his own message.” Hurley, 515 U.S. at 573. And, in fact, “[f]or corporations as for individuals, the choice to speak includes within it the choice of what not to say.” Pac. Gas & Elec. Co. v. Pub. Utils. Comm’n of Cal., 475 U.S. 1, 16, 106 S. Ct. 903, 89 L. Ed. 2d 1 (1986) (plurality opinion).  As plaintiffs so aptly stated, although “the Government may engage in [ ] advocacy using its own voice[,] . . . it may not force others, such as Plaintiffs, to serve as its unwilling mouthpiece.” Reply in Supp. of Pls.’ Mot. (“Pls.’ Reply”), Nov. 18, 2011, at 1 [Dkt. #42]; see Sorrell v. IMS Health, Inc., 131 S. Ct. 2653, 2671, 180 L. Ed. 2d 544 (2011) (“The State can express [its] views through its own speech. But a State’s failure to persuade does not allow it to hamstring the opposition. The State may not burden the speech of others in order to tilt public debate in a preferred direction.”). Thus, where a statute “‘mandates speech that a speaker would not otherwise make,’ that statute ‘necessarily alters the content of the speech.’” Entm’t Software Ass’n v. Blagojevich, 469 F.3d 641, 651 (7th Cir. 2006) (quoting Riley v. National Federation of Blind, Inc., 487 U.S. 781, 795, 108 S. Ct. 2667, 101 L. Ed. 2d 669 (1988)). As the Supreme Court itself has noted, this type of compelled speech is “presumptively unconstitutional.” Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 830, 115 S. Ct. 2510, 132 L. Ed. 2d 700 (1995).

Leon recognized that the government may, sometimes, compel commercial speech in order to protect consumers from confusion or deception. However, the court held that these regulations did not further those interests.

First, after reviewing the evidence here it is clear that the Rule’s graphic-image requirements are not the type of purely factual and uncontroversial disclosures that are reviewable under this less stringent standard. 12 To the contrary, the graphic images here were neither designed to protect the consumer from confusion or deception, nor to increase consumer awareness of smoking risks; rather, they were crafted to evoke a strong emotional response calculated to provoke the viewer to quit or never start smoking. Indeed, a report by the Institute of Medicine—an authority chiefly relied upon by the Government—very frankly acknowledges this very purpose. SeeDefs.’ Opp’n at vi; Institution of Medicine, “Ending the Tobacco Problem: A Blueprint for the Nation” (Richard J. Bonnie ed. 2007) (“IOM Report”) at 290-91. According to the IOM Report, “[i]t is time to state unequivocally that the primary objective of tobacco regulation is not to promote informed choice but rather to discourage consumption of tobacco products, especially by children and youths, as a means of reducing tobacco-related death and disease.” IOM Report at 291. Further, “[e]ven though tobacco products are legally available to adults, the paramount health aim is to reduce the number of people who use and become addicted to these products, through a focus on children and youths,” and, therefore, the “warnings must be designed to promote this objective.” Id.

The court scolded the government for not even considering the obvious First Amendment implications of some of the requirements, and debunked the “dodge” that neither the court nor the FDA has the authority to second guess Congress.

As the parties have conceded, there is no evidence that Congress even considered the First Amendment implications when drafting the Act.See SJ Tr. 30:10-13 (defendants); 42:3-13 (plaintiffs). To say the least, implementing a Final Rule consistent with a congressional mandate does not require a Court to hold that the Rule automatically passes constitutional muster. Congress must pass laws, and the FDA must implement final rules, that are consistent with the requirements of the Constitution.

The court held that the compelled speech was certainly content-based, and thus subject to strict scrutiny. The court found that not only did the government fail to show a compelling interest for the regulations, but that there were much more narrowly tailored ways of achieving its goal of getting out the anti-smoking message. The government had much more constitutionally acceptable means at its disposal to achieve its goals. “because Congress did not consider the First Amendment implications of this legislation, it did not concern itself with how the regulations could be narrowly tailored to avoid unintentionally compelling commercial speech.”

This is one of those cases where the party seeking shelter under the First Amendment isn’t exactly sympathetic. I personally despise cigarettes, the smell of them, the look of them, and the behavior of most who partake. (prior controversial post here) Hell, even the nazis knew that smoking was bad for you. No matter how pristine of an area I find in which to hike, I have yet to fail to find a cigarette butt waiting for me. Lung cancer recently killed an old friend of mine. My own mother, who never touched a cigarette in her life, suffers from maladies that are attributable to second hand smoke. The only thing that I actually find insufferable about living in Las Vegas is the ubiquitous smoke.

That said, I adore this decision. The court correctly found that the government doesn’t get to come up with its favored position and then enlist private parties as its propaganda agents. Not even when its goals might be noble, proper, and helpful.

I kind of like this French anti-smoking ad.

Judge should review history of First Amendment

Pennsylvania District Judge Mark Martin needs to review his First Amendment law a little more carefully. Ernie Perce, an atheist who marched in a Halloween parade last year dressed as “zombie Mohammed,” was before Judge Martin after he alleged he was attacked by Talaag Elbayomy, a Muslim who took action after he witnessed Perce’s costume.

Perce wore a turban and a long, fake beard and painted his face green. During the parade, he yelled the phrases “I am the prophet Mohammed! Zombie from the dead!” He marched with another protestor, who was dressed as a zombie pope, carrying a banner that read, “The Parading Atheists of Central Pennsylvania: Ghoulish, Godless, God-awful.” According to Perce, Elbayomy attacked him, and Elbayomy was charged with harassment.

Judge Martin dismissed the charges against Elbayomy and scolded Perce, telling the protestor he had been insensitive. He also called Perce a “doofus.”

“You have that right, but you’re way outside your bounds of First Amendment rights,” Martin said, according to CNN. “I think our forefathers intended that we use the First Amendment so that we can speak our mind, not to piss off other people and other cultures, which is what you did.”

To the contrary, our forefathers intended that all U.S. citizens be allowed to criticize anyone they chose. The very first American citizens often criticized Great Britain, who they viewed as overly oppressive to the colonists. You can bet that the Brits were none too happy about that. The purpose of the First Amendment is to ensure that all people are protected when expressing their views, even if such views are unpopular. As GW Law professor Jonathan Turley pointed out, “People like Thomas Paine spent his entire life ticking off people across the colonies.” Another founding father, Thomas Jefferson, was hostile to the Catholic Church and criticized it often.

Perce was within his right to express his religious beliefs as an atheist, and if Elbayomy had expressed his dissent in a non-violent manner, he would have also been within his right. Sure, the thrust of the First Amendment isn’t to promote behavior that offends other people, but that is beside the point. Just because Perce offended Elbayomy did not give Elbayomy free license to assault Perce.

Judge Martin’s rationale for dismissing the charges against Elbayomy most certainly should not have been because Perce intended to “piss off other people and other cultures.” This is exactly the sort of thing the First Amendment was intended to protect against. Yes, Perce’s costume was offensive to Elbayomy, but it didn’t rise to the level of fighting words—there were no “personally abusive epithets” required by Cohen v. California.  Judge Martin should not have let Elbayomy off the hook for assault just because Perce said something he personally didn’t like.

Judge Martin could learn a thing or two by looking back again at what the First Amendment actually protects.

Muslim judge in Pennsylvania limits 1st Amendment

From Charles Platt

A judge in Pennsylvania who just happens to be of muslim faith informed a plaintiff that the 1st Amendment doesn’t necessarily give you the right to “p people off.” The plaintiff had worn a “Zombie Mohammed” costume in a public parade in Mechanicsburg, thus enraging a muslim observer who ran forward and tried to choke the man until police intervened. Charges of harassment, filed against the muslim for trying to choke the demonstrator, were dismissed by the muslim judge. Details here.

What happened to Cohen v. California?

A man was arrested for wearing a jacket with a political message on it while in the history exhibit at the United States Supreme Court.

Yes, the same United States Supreme Court that said it was Paul Robert Cohen’s right to wear a jacket in a courthouse emblazoned with the message “fuck the draft.” Cohen v. California, 403 U.S. 15 (1971).

H/T: Paul Levy

First Amendment trumps Equal Opportunity Employment

Today, the Supreme Court in Hosanna-Tabor Church v. EEOC  issued a unanimous ruling on the First Amendment.  While this blog regularly celebrates the Freedom of Speech clause, the decision focuses primarily on the Free Exercise Clause and, to a lesser extent, the Establishment Clause.

In a nutshell:

1. Church had 2 types of teacher–lay and ministerial.
2. Ministerial teacher develops disability and takes leave of absense; replaced by lay teacher.
3. Church rules normally prioritize ministerial teachers, but when this teacher tries to get her job back, she is denied.
4. She becomes insubordinate and complains of an ADA violation.
5. She is terminated.
6. Teacher sues the church for retaliation against her for making an ADA claim.
7. Supreme Court says church wins.

Assuming there was blatant retaliation, the church still wins.  Why?  Because if the government were to tell a church they couldn’t fire a particular minister, that would prevent a church from freely deciding who gets to spread the gospel and who doesn’t.  To its extreme, though excepted specifically in Title VII, if the government had the power to dictate who a church could fire, it could prevent the Pope from defrocking an American Bishop who pronounces the Shahada and converts to Islam.  Basically, the 1st Amendment lets a religion freely decide who gets to be a minister, even if the reasons for hiring or firing are otherwise abhorrent to society.  If you don’t like it, you are free to change religions.  Or declare the person who did the firing a heretic and stone them.  Either way.

Blasting people on twitter – not cyberstalking!

By J. DeVoy

Pundits were concerned earlier this year when the U.S. Attorney for the District of Maryland brought a criminal action against William Lawrence Cassidy.  His alleged crime?  Posting 8,000 harassing twitter messages about Alyce Zeoli, a buddhist leader in Maryland.  The Court dismissed the Government’s case, as Cassidy’s anonymous speech addressed a topic accorded the highest constitutional protections: Religion.

Admittedly, some of the messages were witty.  Take this poetry, for instance:

Ya like haiku? Here’s one for ya. Long limb, sharp saw, hard drop

Some were more esoteric, such as “A thousand voices call out to (Victim 1) and she cannot shut off the silent scream,” while others got to the point: “Do the world a favor and go kill yourself. P.S. Have a nice day.”

The Court’s Order  is a solid win for the Defendant – and free speech.  Within it, the Court found that 18 U.S.C. § 2261A(2) is unconstitutional as applied to the defendant.  Not only does the First Amendment kick ass, it’s now a tool, albeit a slow-working one, against the federal government’s overcriminalization of daily life.

I strongly encourage reading the whole Order, but most importantly, there’s this:

However, it is questionable whether the same interest exists in the context of the use of the Internet alleged in this case because harassing telephone calls “are targeted towards a particular victim and are received outside a public forum.” United States v. Bowker, 372 F.3d 365, 379 (6th Cir. 2004). Twitter and Blogs are today’s equivalent of a bulletin board that one is free to disregard, in contrast, for example, to e-mails or phone calls directed to a victim. See id. at 378 (contrasting why a federal telephone harassment statute serves a compelling governmental interest and a statute that made it a criminal offense for three or more persons to assemble on a sidewalk and to be “annoying” to a passerby did not serve a compelling governmental interest). (emphasis added)

H/T: EFF

Is the Docket Too Light in Manhattan These Days?

Dig if you will the picture of an old guy holding a sign reading “jury info” and handing out pamphlets to random folks in a courthouse plaza in New York.  The pamphlets explain a nifty Constitutional doctrine called “Jury Nullification”.  Now imagine that old guy being prosecuted for jury tampering because of those same pamphlets.  Source

Long story short, jury nullification is when a jury finds a defendant not guilty of the crime he or she is accused of not because of a lack of evidence, but because of a moral or ethical aversion to the law.  Since the Fifth Amendment prohibits defendants from being tried for the same crime twice (double jeopardy), jury nullification is it for that defendant.  Buh-bye.  There can’t be a re-trial.  Ever.  This doctrine is, needless to say, hated by judges and prosecutors.

Back to our old guy- Julian Heicklen.  He’s been cited on six prior occasions for distributing his fliers at the Manhattan courthouse – not because of their content but apparently because he did not have the proper permit.  He admits that his “Jury Info” sign draws people to him and he does answer questions and advises people of the right to nullify. But he says he does not try to influence specific jurors or cases, and that he merely distributes brochures to passers-by, but admittedly with the hope that jurors are among them.

The Prosecution is of the opinion that his “advocacy of jury nullification, directed as it is to jurors, would be both criminal and without Constitutional protections no matter where it occurred…His speech is not protected by the First Amendment”.  Moreover, “No legal system could long survive if it gave every individual the option of disregarding with impunity any law which by his personal standard was judged morally untenable.”

OK- that’s a bit much (did you catch that “no matter where it occurred” part?), but I can see a need for control in the courtroom, deference to the tribunal, and an even stronger need to ensure (as much as possible) that our laws are applied evenly and fairly across the board regardless of our personal convictions-especially in the criminal context.  It’s easy to paint Mr. Heicklen as the victim when we think of a case involving a law we personally disagree with, but what if the charge was sexual assault of a young boy and one of the jurors was a card carrying member of a pederast advocacy group?   It *could* pave the way for a slew of cases where a juror or group of jurors imparts their own moralistic ideals into a verdict and  finds a person “not guilty” based on those ideals without regard to the damage an acquittal could do to society at large.

And that’s where I jump off the prosecution’s train.

Even assuming arguendo  that the plaza is not a public forum (and I remain unconvinced that it is not) it does not appear that distributing pamphlets is a problem there (at least in Manhattan) so why not just another citation this time?   Oh, heavens to Betsy!  This wouldn’t be a prosecution based on content would it? Say it ain’t so!   And what of Mr. Heicklen’s right to voice his opinion about a little known but very important aspect of our Constitution? And since judges are loathe to remind juries of their Constitutional power to nullify (the right to do so notwithstanding) isn’t it important for that bit of knowledge be available? And where better to reach a juror than in a court plaza?

In New York, a person is guilty of jury tampering when “with intent to influence the outcome of an action or proceeding, he communicates with a juror in such action or proceeding…” I see the need for jurors to stick to their knitting, as it were, and not be swayed by outside influences, but what evidence is there that Mr. Heicklen was targeting a specific juror about a specific case?  He was not presenting an opinion to a particular case and he wasn’t even targeting a particular juror, he was just handing this stuff to anybody with the hope that it would go to a juror.

Sorry, but I think this is a case where the prosecution is attempting to kick the First Amendment right in the nuts.

Establish religion, then tax its followers

By Jay Wolman

I’m impressed.  The Department of Agriculture may have violated two First Amendment provisions at once.  As set forth in the November 8, 2011, Federal Register,  there is a new Christmas Tree Promotion Board.  I’m thinking–Establishment clause violation, perhaps?  But, it gets better.  To fund it, there are assessments (i.e. taxes) on Christmas trees.  A tax on Christians.  Free Exercise clause violation, maybe?

So there’s no confusion:

Sec.  1214.3  Christmas tree.

Christmas tree means any tree of the coniferous species, that is  severed or cut from its roots and marketed as a Christmas tree for holiday use.

The USDA does address the Establishment clause question:

Another commenter in opposition raised concerns that the proposed  Order may violate the Establishment Clause. The commenter stated that government speech cannot advocate religion or religious symbols.  USDA considers Christmas trees to be an agricultural commodity which is reported as such in various USDA crop reports and statistical data reports (e.g. 2007 Census of Agriculture, National Agricultural  Statistics Service). The Act in section 512 provides for the establishment of generic promotion, research and information activities for agricultural commodities, including Christmas trees.

I don’t buy it.  Just because it may be an agricultural commodity doesn’t mean that singling it out for special treatment doesn’t violate the Constitution.  If they left it at ”any tree of the coniferous species”, I think they could get away with it.  But once they add in the relationship to Christmas itself, therein lies the problem.  But for Christmas, there is no Christmas tree tax.

The USDA can regulate cotton, too.  But that doesn’t give them the power to make a similar Mormon Underwear Promotion Board, or Muslim Prayermat Promotion Board, or Yarmulke Promotion Board, with an attendent assessment.

What’s More Christian Than a 30 Foot Cross?

By Sean McGilvray

The 9^th Circuit recently denied a rehearing for the case in which they ruled that the giant cross that sits on federally owned land atop Mount Soledad in La Jolla, California is unconstitutional. In January of this year, the 9^th Circuit took the entirely reasonable position that when the federally-maintained Mt. Soledad Veterans Memorial tops itself with a 25 foot tall representation of the most fundamental symbol of Christianity, they are sending a message of wholesale endorsement of the Christian faith in violation of the Establishment Clause.

The Mount Soledad Cross has a long history of controversy, but the latest round of litigation kicked off after the state of California got sick of arguing about it and transferred the land on which the monument stands to the federal government in 2006. The ruling in January spelled it out:

“… after examining the entirety of the Mount Soledad Memorial in context—having considered its history, its religious and non-religious uses, its sectarian and secular features, the history of war memorials and the dominance of the Cross—we conclude that the Memorial, presently configured and as a whole, primarily conveys a message of government endorsement of religion that violates the Establishment Clause.”

Last month, the court declined to review or reverse their earlier decision, which places this case in a prime position to move further up the chain and appear before the U.S. Supreme Court. Not all of the Circuit Judges agreed with the decision however, and Judge Carlos Bea wrote a lengthy dissent attacking the earlier decision and disingenuously suggests that a giant cross has nothing to do with Christianity.

Bea attacks the reliance on the three part test used in Lemon v. Kurtzman, 403 U.S. 602 (1971). Under that test, government action has to meet the following three criteria to avoid violating the Establishment Clause:

1. It  must have a secular legislative purpose.
2. It  must not have the primary effect of either advancing or inhibiting religion.
3. It  must not result in an excessive government entanglement with religion.

Despite the always colorful potshots that conservative justices like Scalia have taken over the years at this standard (“like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence” 508 U.S. 384, 397 (1992)) the Lemon Test is good law.

Under this standard, the government action of acquiring a hunk of land with a giant cinderblock cross and maintaining the monument as-is seems like a cut and dry example of advancing the Christian religion and getting excessively entangled with it. Judge Bea pushes for an application of an exception to the Lemon Test from Van Orden v. Perry, 545 U.S. 677 (2005). In certain borderline cases where the religious iconography in question is part of a larger secular context, the court has to engage in a fact-intensive assessment of a host of factors, including the monument’s purpose, the perception of that purpose by viewers, and the monument’s history. The standard came from the Texas Ten Commandments sculpture case.

Although the Court in Van Orden explicitly eschewed the notion of simple formula in favor of an intensive fact-based analysis, Judge Bea helpfully condenses this analysis to look at the use and context of the Mount Soledad Cross.

Of course the earlier 9^th Circuit decision considered all these factors in addition to their Lemon Test analysis and found that the Soledad Cross was inherently Christian in nature. Judge Bea argues that the fact that Cross is currently part of a veteran’s memorial and is festooned with plaques and American flags somehow negates the religious undertones as though crosses are not associated with memorials precisely because of the religious connotations of the afterlife.

Bea also argues that the history and context of the cross are secular, or at least as secular as a representation of the deity worshipped by the majority of Americans can be. By focusing narrowly on Mount Soledad Cross only as part of a memorial for the veterans since 2006 (when the U.S. government acquired the property) Judge Bea willfully ignores the broader history of the Cross which was a focus for annual Easter services for over forty years. He is a big fan of history when it comes to pointing out that the monument stood unchallenged until 1989 and that this long run without opposition somehow drains the cross of its Christian meaning.

It remains to be seen if the Supreme Court will grant cert for this case and if they do, whether the current lineup will be inclined to see the case the same way as Judge Bea but for now this particular victory in the war to keep church and state on opposite ends of the block has been reaffirmed.

Nevada keeps meetings open to the public

Those lobbying for more transparent government scored big victories this year in the Nevada Legislature. Nevada Senate Bill AB59 created an Open Meeting Law Task Force to make changes to the law, which previously had been cobbled together by a collection of statutes and case law and was difficult for government entities to follow.

The changes include a monetary penalty for officials who have violated the open meeting law and increased public awareness when those violations occur. The language also expands the open meeting law to apply to quasi-judicial bodies, with the exception of parole boards.

If a public body is believed to have violated the opening meeting law, someone can complain to the attorney general’s office, which will send a letter to the council in violation. The entity must then post on the agenda that a violation has been reported, and include the letter reporting the violation at the end of the agenda. The AG was also given subpoena power when investigating alleged violations. Repeated violations come with a $500 fine.

The law also requires that if a public body holds a meeting to consider the “character, alleged misconduct, professional competence, or physical or mental health of a person,” it must provide written notice of that meeting, and must allow in certain individuals if that meeting is closed. Public notice includes publication in a newspaper of record and on the Internet.

The task force also fought to make sure that the definition of “reporter” was as expansive as possible, including citizen journalists and bloggers in the mix. In related action, the Nevada Supreme Court recently altered the camera rules for court proceedings. Reporters are now able to live tweet or send news flashes during open hearings and trials from laptops or cell phones, provided those devices do not make noise or cause disturbances. The NV Supreme Court also changed the requirement of 72 hours’ notice for requests for camera use in courts to 24 hours’ notice. In addition, judges can waive the notice for good cause.

The complete language of the bill can be found here.

In Texas, government officials recently have challenged the validity of the state’s open meeting law, claiming that the law violates government employee’s First Amendment rights. Even though Texas’ $500 fine and six months in jail penalty rarely is levied, officials filed suit challenging the constitutionality of the penalty attached to violating the law. Texas’ penalty is more severe than Nevada’s, which only attached a civil penalty for “willful violation” of the Open Meetings Act.

Texas officials brought the first suit after four Alpine City Council members exchanged emails about an upcoming meeting. According to Texas’ open meeting law, a quorum of public officials must be present to discuss public business. The officials claim it was a violation of their First Amendment rights.

Reporters in Texas fear the Fifth Circuit may strike down the Texas Open Meeting Law, leading to similar actions throughout the rest of the country. Every state has some sort of open meeting law. Supporters of the Texas law argue that the framers did not intend to protect government officials’ ability to congregate in secret.

Public officials are held to a different standard than the average citizen. Courts have consistently struck down First Amendment challenges to open meeting laws by public officials. Open meeting laws ensure that government dealings subject to public scrutiny remain public in order to protect the citizens they govern. While such laws should not prohibit public officials meeting for a friendly drink where the subject of public business is never broached, the laws should hold public officials accountable for their conduct.

High school drama students get lesson in homophobia, censorship

Students in the drama department of a Baltimore high school are fighting back after Hartford County School officials censored a scene from an upcoming production of “Almost, Maine.” The production, which is set to open on Nov. 10 at Bel Air High School, includes nine mini-dramas exploring falling in and out of love. The American Civil Liberties Union stepped in on behalf of the students when school officials took out a scene featuring two men professing their love.

The students say they are still prepared to perform the scene, called “They Fell.”

The scene at the heat of the debate features a humorous discovery of mutual attraction that doesn’t include any references to sexual behavior, and is even less suggestive than other scenes the school chose to leave in, where students kiss, remove clothing and leave the stage, suggesting sexual activity.

According to ACLU of Maryland Legal Director Deborah Jeon, much of the play focuses on the characters falling in love; the only difference here is that the two people in this scene both happen to be men.

So as Hartford County School officials are likely thinking right now, let’s get this straight: the Bel Air High School drama students are allowed to remove clothing and hint at sex as long as it’s between a male and female student. But an innocent scene between two men humorously sharing an exchange of love, which does not even hint at sexual activity, is somehow inappropriate for high school students to depict.

The students at Bel Air High are seeing right through it to the underlying issue of homophobia.

“I think it is important to speak out against homophobia and discrimination, and the full play can help students better understand that love is not something to be feared,” Julia Streett, a sound engineer with the production and the president of the school’s gay-straight alliance, said in a press release.

The students of Bel Air’s drama department are getting an early education on First Amendment and gay rights. We live in a country that glamorizes celebrity weddings like Kim Kardashian’s 72-day PR-debacle, but still shudders at two men sharing a legitimate exchange of love. The only reason for the school’s censorship is homophobia, pure and simple. Kudos to the high school students at Bel Air High School for being more accepting than the adults running the show.