Jail For Laughing Protester Is An Outrage

May 10, 2017

Marc Randazza’s most recent CNN column analyzes the recent conviction of Code Pink Protestor Desiree Fairooz after the media suggested she had been arrested merely for, “laughing at Jeff Sessions” during a Congressional hearing.

There is, of course, more to the story.

See: Jail for laughing protester is an outrage

When Fairooz laughed loudly during Session’s confirmation hearing, Officer Coronado removed her, which caused Fairooz to protest loud enough to disrupt the session. Fairooz was charged with, “disorderly and disruptive conduct and parading or demonstrating on Capitol grounds.”

However, it didn’t end there: Marc Randazza notes that a jury of her peers actually convicted her of these crimes.

Marc Randazza says, “Several jurors said they sympathized with Fairooz, but because the law is so broad that they felt they had no option but to convict.”

“[F]or Fairooz to be facing prison for her conduct is outrageous,” asserts Marc Randazza.

Marc Randazza reminds us that, “the notion of an American citizen going to jail for a nonviolent political protest is utterly antithetical to what this country is all about.”

But why?

As Marc Randazza points out, this has nothing to do with Ms. Fairooz’s message—as he admits he often does not agree with the message of Code Pink—this is about Free Speech and the First Amendment.

For Marc Randazza, it is not the message that deserves protection, it is the speech itself.

“The wall that protects the First Amendment is not manned with pretty happy smiling thoughts and easy-to-love characters. That rampart is manned by the ugly, the impolite, the impolitic, the disturbing image, and the thoughts that you may swallow no easier than if they were made from crushed glass.”

Read the rest here.


Marc Randazza’s most recent CNN column analyzes U.C. Berkley’s decision to silence Ann Coulter

April 27, 2017

See Dear Berekely: Even Ann Coulter deserves free speech.

There has been a wave of violent outbursts against conservative speakers during the 2016 election season, including violent protestors at Berkeley driving Milo Yiannopolous off campus a few months ago.

Berekley’s reaction? When the Berkeley College Republicans invited Coulter to speak, Berkeley canceled it, citing the recent violent outbursts as the reason. Marc Randazza explains that Ann Coulter suggested disciplining the students that engaged in violence, but Berkeley decided instead to reschedule the speech on a day when no students were on campus.

This is censorship.

Marc Randazza says that some people on the left feel, “emboldened by a view that ‘we’ are right and the Right (is) wrong,” and goes on to scold the left: “Shame on the Left for tacitly condoning this culture of violent suppression of views it disagrees with.”

Marc Randazza reminds us that we don’t need a First Amendment for speech that neither challenges, nor offends, because sometimes that very challenging and offensive speech fosters growth.

Marc Randazza points out that the left used to be beacons for free speech, and credits a few well known liberals for defending Coulter’s right to speak in the column:

“Are we living in an alternate reality, one in which Bill Maher and Bernie Sanders are sticking up for Ann Coulter?

What could have caused this rip in the space-time continuum?

The so-called birthplace of the free speech movement, the University of California at Berkeley, has once again engaged in liberal censorship, this time of Ann Coulter, using the fear of violence as cover to suppress a voice it did not like.”

Read the rest here.


Free Speech and Discrimination Redux

December 28, 2015

by Jay Marshall Wolman

Last week, I wrote about a potential implication from In re: Tam, based upon the hypothetical from a dissenting judge about a business calling itself “Spics Not Welcome”.  There is a significant tension in the law between freedom of speech, which includes the right to offend, and anti-discrimination laws.

The fine folks at the New York City Commission on Human Rights have decided to push the envelope, issuing guidelines for employers and landlords regarding transgendered individuals.  Among the well-intentioned guidelines are those that prohibit an employer or landlord from using a person’s biological gender instead of the person’s preferred gender.  Within the confines of the law and the powers of the Commission, it seems to be a natural progression from prohibiting treatment of a biological woman differently because she is not male to treating a male differently because he is a biological woman.  This progression has focused on the rights of the employee and tenant.

However, landlords and employers have rights, including First Amendment rights.  We may talk about the speech/conduct distinction, but it is a very much a speech regulation when we are specifically talking about what specific words a landlord or employer is allowed to use.

It also prohibits gender-specific dress codes and, in effect, single gender bathrooms.  Some businesses may take issue with these regulations as well, perhaps a Hobby Lobby or Chik-fil-a.  Looking at Boy Scouts of America v. Dale and more recent cases such as Hobby Lobby (though not decided on 1st Amendment grounds) or Citizens United, freedoms of belief and association, including at the corporate level,  are likely to swallow the entirety of the NYC guidelines.  Gender expression is a form of speech, and government isn’t supposed to be in the business of deciding which content is preferred.

If there is substantial litigation over these new guidelines, they may set the stage for greater scrutiny of all speech regulations under the guise of anti-discrimination.

 


Spics Not Welcome

December 22, 2015

by Jay Marshall Wolman

By now, you have probably heard that Simon Tam won his case before the Federal Circuit regarding his attempt to register a trademark for his band “The Slants”.  (Disclosure: Randazza Legal Group represented the First Amendment Lawyers’ Association as amicus curiae in that case and was recently co-counsel with Mr. Tam’s lawyers, Ron Coleman and Joel MacMull, on another matter.)  In short, the Federal Circuit Court of Appeals found that the denial of registration under the Lanham Act’s prohibition of the registration of “disparaging” marks did not survive strict or intermediate scrutiny under First Amendment analysis.  I leave it to others to provide an analysis of the holding.

I’m more interested in something that appears on page 9 (page 107 of the PDF) of the dissent of Circuit Judge Reyna.  In it, Judge Reyna (who happens to have been a former president of the Hispanic National Bar Association) offers up the following as a permissive government regulation of disparaging speech:  a restaurant named “SPICS NOT WELCOME”.  Judge Reyna notes that Title VIII of the Civil Rights Act of 1964 bans advertising with a discriminatory preference and discusses how (the better known) Title VII bans harassing speech in the workplace.  He then writes that the government interest in avoiding disparagement, such as that with demographically discriminatory content, outweighs the burdens on speech.

With Judge Reyna in the dissent, something to consider is what would be the implications of a restaurant named “SPICS NOT WELCOME”.  Prof. Eugene Volokh has explored the conflict between First Amendment law and harassment law.  Judge Reyna’s example sets it up nicely.  Let’s assume an entrepreneur named a restaurant “Spics Not Welcome” and registered that trademark.  Let’s also assume that the restaurant does not actually discriminate against persons of Hispanic origin (for the hypothetical, let’s presume the restauranteur hates spices, but has a spelling problem and forgot the “e”).

Presumably, the name would dissuade both potential consumers and job applicants of Hispanic origin and would be deemed to violate the Civil Rights Act under present jurisprudence.  So, on the one hand, you can register and use a disparaging mark under the First Amendment, but on the other, it is prohibited as being discriminatory.  Which one stands?  And, even though the trademark matter was decided on constitutional grounds, that does not mean that the government interest analysis is the same.  Of course, it may be argued that it is the same analysis and down goes harassment law.

If not, can you have a registered trademark you are not allowed to use?  Does trademark law trump civil rights law or vice versa?  Since the Lanham Act predates the Civil Rights Act, perhaps the latter trumps.  I’ll have to look into instances where an offensive mark was deemed unlawful harassment and update this post.

Now, I don’t recommend naming a restaurant “Spics Not Welcome”.  But what if The Slants needs a new drummer–can a non-asian apply?  Would they feel harassed or precluded by the name?  It’ll be interesting to see how the law develops.

 

 

 


A Slanted View of Trademarks and Free Speech

November 4, 2015

by Jay Marshall Wolman

Free speech and the Lanham Act (the federal law dealing with trademarks) has been a hot topic of late.  There are two high profile matters in separate courts of appeals challenging the constitutionality of Section 2(a), which prohibits the registration of disparaging marks.

In the Federal Circuit is the matter In re: Tam, in which the band, The Slants, is challenging the refusal of the registration of the mark in its name.  Their brief can be found here.  Marc previously commented on that case here. (Disclaimer: Marc wrote a brief for the First Amendment Lawyers’ Association. That brief is here. You may also want to read Marc’s infamous “Fuck” brief here. The viewpoints expressed herein are my own and should not be construed as those of Marc Randazza, Randazza Legal Group, or the First Amendment Lawyers’ Association.)

And, in the Fourth Circuit, is the matter of Pro-Football, Inc. v. Blackhorse, in which the Washington Redskins are challenging the cancellation of their mark.  Their brief can be found here.

The Slants and the Redskins are both arguing, among other things, that the ban on registration of disparaging marks is an unconstitutional restriction of speech.  It is not a content-neutral regulation and they claim that the denial or cancellation burdens their commercial speech, when compared to others, since they cannot enforce the marks to the same extent.  They claim it is not government sanctioned speech, per se, simply by registering the mark.  The Redskins brief specifically  highlights other offensive (it believes) marks that have passed muster and no one believes that the registration=government speech.  It specifically distinguishes the Texas License Plate case, Walker v. Texas Division, Sons of Confederate Veterans, Inc.,135 S. Ct. 2239 (2015), noting that trademark registrations, unlike license plates, are not generally known to be vehicles for government speech.

Because these are pending before different circuits, it is well possible for there to be a circuit split that might ultimately warrant Supreme Court review.

Omitted from discussion, and worth noting, is that, in essence, trademarks actually limit free speech.  Prof. Lisa Ramsey argues as much here.  Conceptually, a trademark registration means that my right to speak your mark is limited.  Hypothetically, it means that in my sporting goods store that caters to British clients, I cannot probably label American baseballs as Yankee balls; it means that I cannot probably market a device that lets a Microsoft and Apple computer talk to each other as a “Surface to Air Missile”.  And descriptive marks are even more limiting–only Fox News is allowed to call itself “Fair and Balanced”.

When thinking about these together, the Slants and Redskins are arguing that their speech rights are being limited because they don’t have the same right to limit the speech of others as others might have.  Normally, the argument is that registration of the mark limits speech.  Here, they argue that denial of registration limits speech.  They may well be right in the end, but this is definitely one of those interesting competing rights cases.


Wait a Cotton Pickin’ Minute: Free Speech and Employment

November 2, 2015

by Jay Marshall Wolman

As an employment lawyer who works for a 1st Amendment firm, I try to keep up with developments in both areas.  Sometimes, they overlap, as they did in my Twitter feed recently.  (Blatant self-promotion, feel free to follow me @wolmanj ).

In Trusz v.UBS Realty Investors, LLC, the Connecticut Supreme Court was asked to consider how it should evaluate statements by employees and retaliation claims.  As noted by the court in Trusz, Connecticut employees (private, as well as public) have broad free speech rights under the Connecticut constitution:

This court previously has held that because, unlike the first amendment to the federal constitution: (1) article first, § 4, of the Connecticut constitution includes language protecting free speech ‘‘on all subjects’’; (2) article first, § 5, of the Connecticut constitution uses the word ‘‘ever,’’ thereby providing ‘‘additional emphasis to the force of the provision’’; (internal quotation marks omitted) State v. Linares, 232 Conn. 345, 381, 655 A.2d 737 (1995); and (3) article first, § 14, of the Connecticut constitution provides a right to seek redress for grievances by way of ‘‘remonstrance,’’ and therefore ‘‘sets forth free speech rights more emphatically than its federal counterpart’’; (internal quotation marks omitted) State v. Linares, supra, 381; these textual differences ‘‘warrant an interpretation separate and distinct from that of the first amendment.’’ (Internal quotation marks omitted.)Id. The text of article first, § 4, of the Connecticut constitution providing that citizens of this state are free to speak ‘‘on all subjects, being responsible for the abuse of that liberty’’; (emphasis added); is particularly relevant in the present case. This broad and encompassing language supports the conclusion that the state constitution protects employee speech in the public workplace on the widest possible range of topics, as long as the speech does not undermine the employer’s legitimate interest in maintaining discipline, harmony and efficiency in the workplace.

Daniel Schwartz, over at Connecticut Employment Law Blog, has a terrific analysis of the decision itself.  The Trusz case came after the Garcetti case, which addressed public employee rights and held, as Dan summarizes, “workplace speech that relates to an employee’s official duties is not protected.”  Trusz ignored that limit and the money quote is:

If an employee’s job related speech reflects a mere policy difference with the employer, it is not protected. It is only when the employee’s speech is on a matter of public concern and implicates an employer’s official dishonesty…other serious wrongdoing, or threats to health and safety that the speech trumps the employer’s right to control its own employees and policies.

Not all speech is treated equally.  It must be of public concern and implicate dishonesty, wrongdoing, or threats arising from the employer.  Other speech remains unprotected.  Of course, this really only matters for Connecticut; the rest of the country is unaffected and public employees are governed by Garcetti.

The other matter that was prominently featured in my feed was the firing of Ericka Escalante by Isagenix.  Ms. Escalante posted a photograph of herself picking cotton with the caption “Our inner Nigger came out today”.  As I grew up watching Looney Tunes, I was well familiar with the term “cotton pickin'”, though apparently there is a distinction:  cotton pickin’ itself is not racist, but calling someone a “cotton picker” is.  Isagenix, as a private employer, was fully within its right to terminate Ms. Escalante for her off-the-clock speech on a matter not of public concern. (Also, Isagenix should be commended for paying interns and avoiding the scrutiny of unpaid internships.)

Still, an employer like Isagenix should be sure it conducts a proper investigation, especially if it is a Connecticut employer.  What if the subtext were that Latino interns were treated or paid worse than African-American interns, and Ms. Escalante’s posting was a complaint that, were she African-American, she would be treated better?  Would the racist nature (use of “Nigger” and cotton picker imagery) override her complaint about racism in the workplace (a matter of public concern and serious wrongdoing)?  (Additionally, if it is on behalf of a group of employees, might it also be protected by section 7 of the NLRA?)  Here, there do not appear to be those issues, but employers should still satisfy themselves that they are not facing a suit merely by doing what internet denizens demand or, at least, weigh the risks.


Fourth Circuit Delivers First Amendment Ass-Kicking

June 28, 2013

This is not a Star Trek order.  There are no pithy jokes here.  There is, however, a shocking exposé of just how insidious the government can be in coercing silence when you speak out against outdated, incorrect, and even dangerous “conventional wisdom.”

Cooksey v. Futrell, et al., Case No. 12-2084, 2013 WL 3215240 at *1 (4th Cir. June 27, 2013).

Steve Cooksey ran a blog advocating a low-carbohydrate, high-protein diet.  This diet and its permutations are generally known as known as a “paleo,” “primal” or “caveman” diet, and is based on eliminating historically recent additions to the human diet, such as processed grains.  This more or less inverts the USDA’s food pyramid (or triangle, depending on what generation you are), putting meat at the base of the pyramid with rough, leafy greens, and treating carbohydrate-laden foods like bread as less important.  Like anything people feel strongly about, the ambassadors of the paleo diet can be abrasive and annoying.  But, it works.

Cooksey’s backstory is remarkable, but surprisingly common among health advocates.  A Type II (adult-onset) diabetic, Cooksey was rushed to a hospital on the verge of a coma in 2009.  His dietitians advised him to eat a diet high in carbohydrates.  Cooksey, however, investigated matters himself and arrived at a diet high in protein and low in carbohydrates.  His blood sugar normalized and he was able to stop using insulin.  With a combination of diet and exercise (rather than, say, “fat acceptance”), Cooksey lost 78 pounds and felt better than ever before.

Paying it forward, Cooksey opened his blog, diabetes-warrior.net, in early 2010.  Cooksey used the blog to talk about his diet and lifestyle changes. He even included a disclaimer that he was not a licensed medical profession and had no medical qualifications – similar to how legal bloggers are quick to reminder readers that nothing they say online is legal advice.  The overarching theme of Cooksey’s blog was that high-carbohydrate diets caused more diabetes.  During the months of December 2011 and January 2012, Cooksey’s blog had 20,000 unique visitors.

Then Cooksey made the mistake all new red-pill types do: He explained his views to a weak and deliberately helpless public.  In July 2012, Cooksey attended a nutritional seminar for diabetics.  The seminar’s speaker advocated a high-carbohydrate diet for diabetics; Cooksey responded by advocating a low-carbohydrate diet instead.  An attendee at the seminar was so “””offended””” that he or she reported Cooksey to the North Carolina Board for Dietetics/Nutrition (the “Board”), claiming Cooksey’s advocacy was actually the unlicensed practice of dietetics.  Under North Carolina law governing dietetics, only licensed dietitians may provide nutrition care services, which have a broad definition that includes:

a. Assessing the nutritional needs of individuals and groups, and determining resources and constraints in the practice setting.
b. Establishing priorities, goals, and objectives that meet nutritional needs and are consistent with available resources and constraints.
c. Providing nutrition counseling in health and disease.
d. Developing, implementing, and managing nutrition care systems.
e. Evaluating, making changes in, and maintaining appropriate standards of quality in food and nutrition services.

Under North Carolina law, each and every act of unlicensed practice of dietetics is a separate misdemeanor.

The Board contacted Cooksey.  It told him that he would need to change his website.  It also told him that it was statutorily entitled to get an injunction against him.  Cooksey, fearing civil action, reluctantly complied with the Board’s initial demands to change his website, removing parts that might have been considered “advice” to visitors.

The Board told Cooksey it would review his website and tell him what he could and couldn’t say without a dietitian’s license.  After reviewing Cooksey’s site, the Board got back to him with pages and pages of comments.  The Board’s message was clear: Fix it – or else.  Again, Cooksey acquiesced – this time in fear of civil and even criminal penalties.  Despite not communicating with the Board, it nevertheless sent Cooksey a letter, noting that he had made the requested changes, and tacitly warning Cooksey that it would “continue to monitor the situation.”

After receiving this letter, Cooksey filed suit under 42 U.S.C. § 1983 for the Board’s actions chilling his First Amendment protected speech.  He also sought a declaratory judgment that North Carolina’s statutes were unconstitutional both facially and as-applied.  The Board moved to dismiss under Fed. R. Civ. P. 12(b)(1) for lack of standing and lack of ripeness, and 12(b)(6) for failure to state a claim.  The district court granted the motion, holding that “voluntarily removing parts of one’s website in response to an inquiry from a state licensing board is not a sufficient injury to invoke Article III standing.”  The court also found that Cooksey was not subject to actual or imminent enforcement of the Board’s draconian laws.

At first blush, it seems that the district court took an unusually charitable view toward the Board’s actions.  Many who read this blog would disagree with the outcome.  Cooksey disagreed.  And so, too, did the United States Court of Appeals for the Fourth Circuit.

The Fourth Circuit’s panel – which included former United States Supreme Court Justice Sandra Day O’Connor sitting by designation – reviewed the dismissal de novo, or anew (conducting a new, independent analysis of the facts that were before the district court).  The Court of Appeals embarked on an analysis of justiciability with two old law school (and in one case, law practice) favorites, standing and ripeness.  The analysis is considerable, going on for many pages.  Some highlights are excerpted below:

On the question of standing:

In First Amendment cases, the injury-in-fact element is commonly satisfied by a sufficient showing of “self-censorship, which occurs when a claimant is chilled from exercising h[is] right to free expression.” Benham v. City of Charlotte, 635 F.3d 129, 135 (4th Cir. 2011) (internal quotation marks omitted).

However, this anticipated cannot just be speculative or the fruit of conjecture.  The appeals court quickly outlined how Cooksey’s case allowed him to have standing, largely due to the Board’s aggression:

In the present case, we not only have evidence of specific and — unlike NCRL — unsolicited written and oral correspondence from the State Board explaining that Cooksey’s speech violates the Act, but we also have a plaintiff who stopped engaging in speech because of such correspondence, and an explicit warning from the State Board that it will continue to monitor the plaintiff’s speech in the future. See J.A. 18 (Compl. ¶ 63-64) (Burill told Cooksey “that he and his website were under investigation” and that the State Board “does have the statutory authority to seek an injunction to prevent the unlicensed practice of dietetics.”); id. at 39 (red-pen review) (“You should not be addressing diabetic’s specific questions. You are no longer just providing information when you do this, you are assessing and counseling, both of which require a license.”); id. at 66 (Burill email) (“[W]e would ask that you make any necessary changes to your site, and moreover, going forward, align your practices with the guidance provided.”); id. at 105 (Burill letter) (“[T]he Board reserves the right to continue to monitor this situation.”). Therefore, we have no trouble deciding that Cooksey’s speech was sufficiently chilled by the actions of the State Board to show a First Amendment injury-in-fact.

The Board’s aggression was also helpful to Cooksey in showing a credible threat of prosecution.  From there, his complaint easily satisfied the requirements of causation – that his injury was caused by the conduct he complained of – and redressibility, which requires a non-speculative likelihood that his injury would be redressed by a favorable judicial decision.

Unfortunately, the opinion gave some daylight to the Board’s position.  If the laws the Board enforces are professional regulations that do not abridge the First Amendment, such as certain limited limitations placed on attorney speech by state professional conduct rules, then Cooksey may ultimately not prevail.  However, because that is question of the case’s merits – how the facts and the law mesh in court – rather than one of standing, or Cooksey’s ability to bring his claim to Court in the first place, this potential defense cannot keep Cooksey out of court (for now).

As for ripeness:

Much like standing, ripeness requirements are also relaxed in First Amendment cases. See New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495, 1500 (10th Cir. 1995) (“The primary reasons for relaxing the ripeness analysis in th[e] [First Amendment] context is the chilling effect that potentially unconstitutional burdens on free speech may occasion[.]”). Indeed, “First Amendment rights . . . are particularly apt to be found ripe for immediate protection, because of the fear of irretrievable loss. In a wide variety of settings, courts have found First Amendment claims ripe, often commenting directly on the special need to protect against any inhibiting chill.” Id. (internal quotation marks omitted).

The Court then gave the Board a little more abuse for soiling its own bed.

In the same way, Cooksey’s claims present the question of whether the Act and actions of the State Board unconstitutionally infringe on Cooksey’s rights to maintain certain aspects of his website. No further action from the Board is needed: it has already, through its executive director, manifested its views that the Act applies to Cooksey’s website, and that he was required to change it in accordance with the red-pen review or face penalties.

In its conclusion, the court of appeals vacated the district court’s order dismissing Cooksey’s complaint and remanded the case for a proceeding on the merits.  The Board can always ask the Fourth Circuit to stay its mandate and grovel with thousands of others to be the 1% whose cert petition the Supreme Court grants.  If nothing else, it will buy them time.  Hopefully, this opinion will leave a mark on the Board and make abusive government entities everywhere think twice before making any “suggestions” to the lowly citizenry they benevolently manage.  Specifically for the Board, its bad dream just got another life, Freddy Krueger-style.

A closing thought: North Carolina does not have an Anti-SLAPP law – not even a mediocre one that could be made good, like Nevada’s (which, starting October 1, 2013, gets a nice octane boost).  While § 1983 claims allow prevailing non-governmental parties to seek their attorneys’ fees under § 1988(b), those fees are discretionary, while prevailing Anti-SLAPP fees are mandatory – and more expeditiously awarded.  While state law-based Anti-SLAPP laws do not always work as drafted in federal court, there is a serious question whether such a statute’s existence or use would have led to a different outcome without an appeal – or any litigation at all.