Category Archives: First Amendment

Jack Greiner 7:04 a.m. ET March 10, 2017

John C. Greiner, attorney for Graydon Head Legal Counsel. He's a commercial litigator with an emphasis on communications and media law. He serves on the firm's Appellate Practice Group. (Photo: Provided, Provided)

The Supreme Court of the United States heard oral argument recentlyon a case that poses the question whether the First Amendment prevents a state from prohibiting a person from using certain designated social media sites. On its face, that question may elicit a question in response, e.g. why would the state prevent anyone from using social media?

And the answer is that North Carolina has a statute that prohibits registered sex offenders from accessing: a commercial social networking Web site where the sex offender knows that the site permits minor children to become members or to create or maintain personal Web pages on the commercial social networking Web site.

The statute defines commercial social networking site as one that:

That definition, of course, sweeps a lot of sites under its reach, including LinkedIn. And that poses a problem for people affected by the law. People use social networking for any number of reasons some trivial, some not. Job seekers no doubt use LinkedIn to search for opportunities and otherwise network. A law that shuts off that resource makes it tough to find work.

The law may or may not be good policy. But that isnt the issue for the Supreme Court. The question there is whether the Constitution permits it. And that decision may depend on a determination about what the statute actually prohibits. In upholding the law, the North Carolina Supreme Court concluded that the law did not restrict expressive conduct. And for that reason, the First Amendment did not invalidate the law, so long as the statute advanced an important government interest and wasnt substantially broader than it needed to be to achieve the interest. Applying this test, the North Carolina Supreme Court concluded that the governments interest in protecting children from sexual predators was important, and the statutes limited application (it didnt bar all internet usage) wasn't overly broad.

But the U.S. Supreme Court may conclude the statute in fact limits expressive conduct. If so, North Carolina would need to prove the ban is the least restrictive means to achieve the interest. That is a tougher test. And the Supreme Court may apply it. Justice Ruth Ginsburg, for example, noted that the First Amendment protects the right not only to speak but the right to receive information. A law barring access to a broad swath of social media sites would bar the receipt of information. If thats the case, and North Carolina has to prove the statute is the least restrictive means it will be in for an uphill fight. That standard allows the opposing party to effectively brainstorm all of the ways the law could be restricted. And if the court agrees with any of the ideas, it can invalidate the law.

We'll see how the Supreme Court resolves this one. There is still the prospect of a 4-4 tie (until Neil Gorsuch is confirmed). That would allow the law to stand. But if the Supreme Court applies the more strict standard, the odds are long for North Carolina.

It goes to show that we never know when the First Amendment will pop up. But it protects people we like as well as people who creep us out.

Jack Greiner is a lawyer with the Graydon Head law firm in Cincinnati and represents Enquirer Media in First Amendment and media issues

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Is there a First Amendment right to LinkedIn? - Cincinnati.com

Introduction

On the 2016 campaign trail, then-candidate Donald Trump promised he would pick a Supreme Court nominee in the mold of the late Justice Antonin Scalia. To this end, President Trump narrowed his candidate shortlist to three federal appellate judges who had the approval of the Heritage Foundation and Federalist Society, 1Open this footnote Close this footnote 1 Ed Kilgore, Trumps Supreme Court Pick Is Due Next Week, With 3 Conservatives Still in the Running, N.Y. Mag. (Jan. 24, 2017, 3:04 PM), http://nymag.com/daily/intelligencer/2017/01/trumps-scotus-short-list-down-to-3-conservatives.html. Open this footnote Close and whom the press perceived as conservative. 2Open this footnote Close this footnote 2 See, e.g., id. Open this footnote Close Of the candidates, several scholars and commentators labeled Judge Neil M. Gorsuch of the Tenth Circuit the judge whose jurisprudence most closely tracks Justice Scalias. 3Open this footnote Close this footnote 3 See Oliver Roeder & Harry Enten, Trump Picks Neil Gorsuch, A Scalia Clone, for the Supreme Court, FiveThirtyEight (Jan. 31, 2017, 8:04 PM), http://53eig.ht/2jSTQAs. Open this footnote Close Indeed, several journalists and scholars argued Judge Gorsuch could prove to be significantly more conservative than the late Justice. 4Open this footnote Close this footnote 4 See Alicia Parlapiano & Karen Yourish, Where Neil Gorsuch Would Fit on the Supreme Court, N.Y. Times, https://nyti.ms/2jSTKsD (last updated Feb. 1, 2017). Open this footnote Close

We argue that Judge Gorsuchs characterization as a more conservative Justice Scaliahowever true it may be as a general matteris not particularly helpful in understanding the role a potential Justice Gorsuch would play in the field of free expression. In broad strokes, Judge Gorsuchs opinions in key First Amendment expression cases have fallen, like Justice Scalias, within the mainstream. In the same vein as Justice Scalias frequent votes with more liberal Justicesoften as part of large majoritiesin free expression cases, 5Open this footnote Close this footnote 5 See, e.g., Snyder v. Phelps, 562 U.S. 443, 446 (2011) (8-1 decision). Open this footnote Close Judge Gorsuchs free expression opinions have been either unanimous opinions for three-judge panels or separate concurrences with unanimous judgments. 6Open this footnote Close this footnote 6 See infra Part I. Open this footnote Close Usually, these opinions have solidified protections for expression. 7Open this footnote Close this footnote 7 See infra Part I. Open this footnote Close

Significant differences remain between Judge Gorsuch and Justice Scalia. Justice Scalias trademark originalism has barely registered in Judge Gorsuchs free speech jurisprudence. 8Open this footnote Close this footnote 8 See infra Part II.A. Open this footnote Close Justice Scalia himself did not use originalism to resolve First Amendment questions as much as he might have. By one account, he used it only about 30% of the time. 9Open this footnote Close this footnote 9 Derigan Silver & Dan V. Kozlowski, The First Amendment Originalism of Justices Brennan, Scalia and Thomas, 17 Comm. L. & Poly 385, 402 (2012) (finding that only 30.4% of Justice Scalias freedom of expression opinions through the 2010 Term used originalism). Open this footnote Close But that is still a lot of casesand a lot more than Judge Gorsuchs 0%. 10Open this footnote Close this footnote 10 See infra Part II.A. Open this footnote Close Moreover, a clear minimalist thread runs through Judge Gorsuchs decisions, 11Open this footnote Close this footnote 11 See infra Part II.B. Open this footnote Close while Justice Scalia was not known for his minimalism. 12Open this footnote Close this footnote 12 See Robert Anderson IV, Measuring Meta-Doctrine: An Empirical Assessment of Judicial Minimalism in the Supreme Court, 32 Harv. J.L. & Pub. Poly 1045, 1064-71 (2009) (evaluating Justices minimalist and maximalist tendencies and finding that Justices Scalia and Thomas were maximalist outliers relative to the rest of the Court). Open this footnote Close

Ultimately, even though Judge Gorsuchs First Amendment methodology may diverge from Justice Scalias, we conclude Judge Gorsuch is unlikely to work a sea change in this area of the Courts jurisprudence.

To understand Judge Gorsuchs potential impact on free expression jurisprudence as a Justice, we must look first to his work in this area as a judge. We begin in Part I with an overview of Judge Gorsuchs published free expression opinions. In Part II, we examine Judge Gorsuchs originalism and minimalism. In Part III, we look at Judge Gorsuchs substantive vision for what types of expression the First Amendment protects.

I. Freedom of Expression Cases

Judge Gorsuch has authored five published opinions implicating First Amendment expression issues. These cases have dealt with defamation (twice); 13Open this footnote Close this footnote 13 Bustos v. A & E Television Networks, 646 F.3d 762, 762 (10th Cir. 2011); Mink v. Knox, 613 F.3d 995, 1012 (10th Cir. 2010) (Gorsuch, J., concurring). Open this footnote Close the Petition Clause, 14Open this footnote Close this footnote 14 Van Deelen v. Johnson, 497 F.3d 1151, 1153 (10th Cir. 2007). Open this footnote Close retaliation, 15Open this footnote Close this footnote 15 Casey v. W. Las Vegas Indep. Sch. Dist., 473 F.3d 1323, 1325 (10th Cir. 2007). Open this footnote Close and campaign finance. 16Open this footnote Close this footnote 16 Riddle v. Hickenlooper, 742 F.3d 922, 930 (10th Cir. 2014) (Gorsuch, J., concurring). Open this footnote Close Judge Gorsuch wrote the controlling opinion in three of these cases. In the other two, Judge Gorsuch joined the majority in the judgment but wrote separately to reject portions of the majoritys reasoning as unnecessary.

A. Defamation

Judge Gorsuch has written two notable opinions involving constitutional limits on liability for defamation. In Bustos, Judge Gorsuch addressed a prisoners defamation claim against a television network. 17Open this footnote Close this footnote 17 646 F.3d at 763. Open this footnote Close Writing for a unanimous panel, Judge Gorsuch decided Bustos on state law grounds, holding the plaintiff could not prove the statement at issue was materially false. 18Open this footnote Close this footnote 18 Id. at 767. Open this footnote Close But Judge Gorsuchs opinionwhich he listed as a significant constitutional opinion[] in his Senate Judiciary Committee questionnaire 19Open this footnote Close this footnote 19 Neil M. Gorsuch, United States Senate Committee on the Judiciary: Questionnaire for Nominee to the Supreme Court 36-37 (2017), https://www.judiciary.senate.gov/imo/media/doc/Neil%20M.%20Gorsuch%20SJQ%20(Public).pdf. Open this footnote Close highlighted the issues constitutional and historical underpinnings. 20Open this footnote Close this footnote 20 See Bustos, 646 F.3d at 763-64. Open this footnote Close Judge Gorsuch chronicled the truth defenses origins at English common law, where in a twist worthy of an award from the Circumlocution Office, truth was a defense in civil cases but an aggravating factor in criminal cases. 21Open this footnote Close this footnote 21 Id. at 763. Open this footnote Close He noted that American courts [s]ensibly adopted the English civil approach, which became a First Amendment imperative. 22Open this footnote Close this footnote 22 Id. at 764. Open this footnote Close

In the other defamation case, Mink v. Knox, 23Open this footnote Close this footnote 23 613 F.3d 995, 1012 (10th Cir. 2010) (Gorsuch, J., concurring). Open this footnote Close Judge Gorsuch wrote a concurrence in which he expressed a reluctance to extend protections for defendants too far. Thomas Mink was a university student who published online a satirical editorial column fake-written by Junius Puke, a not-so-veiled reference to a professor, Junius Peake. 24Open this footnote Close this footnote 24 Id. at 998 (majority opinion). Open this footnote Close Someone else might have brushed it off; Peake called the cops. 25Open this footnote Close this footnote 25 Id. Open this footnote Close A criminal libel investigation ensued, deputy district attorney Susan Knox issued a search warrant, the police executed it, and Mink sued. 26Open this footnote Close this footnote 26 Id. at 998-99. Open this footnote Close The district court dismissed Minks claim against Knox, holding in part that Knox was entitled to qualified immunity because it was not clearly established that the column was constitutionally protected speech. 27Open this footnote Close this footnote 27 Id. at 999. Open this footnote Close

The Tenth Circuit reversed, holding that the column was a parody and thus constitutionally protected under clearly established circuit precedent. 28Open this footnote Close this footnote 28 Id. at 1006, 1009, 1011. Open this footnote Close Judge Gorsuch concurred, wanting to avoid what he saw as unnecessary dicta defending that precedent. 29Open this footnote Close this footnote 29 Id. at 1012-13 (Gorsuch, J., concurring). Open this footnote Close

B. Right to Petition

Judge Gorsuch addressed the First Amendments Petition Clause in Van Deelen v. Johnson, where a taxpayer claimed that county officials tried to intimidate him into dropping tax assessment challenges. 30Open this footnote Close this footnote 30 497 F.3d 1151, 1153 (10th Cir. 2007). Open this footnote Close The district court dismissed the suit, holding that the tax challenge was not a matter of public concern and therefore was not constitutionally protected. 31Open this footnote Close this footnote 31 Id. Open this footnote Close Judge Gorsuch, writing for a unanimous panel, rejected the public concern limitation, explaining that the right to petition extends to matters great and small, public and private. 32Open this footnote Close this footnote 32 Id. Open this footnote Close While widely accepted, this position is not entirely uncontroversial. 33Open this footnote Close this footnote 33 See Dobbey v. Ill. Dept of Corr., 574 F.3d 443, 447 (7th Cir. 2009) (criticizing Van Deelen as exceedingly broad[]). Open this footnote Close

C. Retaliation

Judge Gorsuch addressed First Amendment retaliation claims by public employees in Casey v. West Las Vegas Independent School District, which involved a school superintendent who had been fired after pushing her school board to bring the local Head Start program into compliance with federal requirements. 34Open this footnote Close this footnote 34 473 F.3d 1323, 1325-27 (10th Cir. 2007). Open this footnote Close The Tenth Circuit addressed which of Caseys statements she had made as an employee rather than a private citizen; under the then-new Supreme Court precedent of Garcetti v. Ceballos, 35Open this footnote Close this footnote 35 547 U.S. 410, 421-22 (2006). Open this footnote Close the First Amendment does not protect the former class of statements. 36Open this footnote Close this footnote 36 Casey, 473 F.3d at 1328-29. Open this footnote Close Ultimately, Judge Gorsuch, writing for a unanimous panel, held that the portfolio of Caseys duties included advising her superiors and instructing her subordinate, but that she acted as a private citizen when she went around her superiors to complain to the state attorney general. 37Open this footnote Close this footnote 37 Id. at 1329-33. Open this footnote Close

D. Campaign Finance

Judge Gorsuch also addressed freedom of expression in his concurrence in Riddle v. Hickenlooper, although the case primarily dealt with Fourteenth Amendment campaign finance questions. 38Open this footnote Close this footnote 38 742 F.3d 922, 931-32 (10th Cir. 2014) (Gorsuch, J., concurring). Open this footnote Close Plaintiffs challenged a Colorado campaign finance law that functionally allowed major-party candidates to raise twice as much money from an individual donor in a given campaign as third-party, independent, and write-in candidates. 39Open this footnote Close this footnote 39 Id. at 924-25 (majority opinion). Open this footnote Close The panel applied a campaign finance-specific form of heightened scrutiny to strike down the statute. 40Open this footnote Close this footnote 40 Id. at 927-28. Open this footnote Close Judge Gorsuch concurred, agreeing the law was unconstitutional but noting uncertainty about the correct level of scrutiny to apply based on the Supreme Courts campaign finance jurisprudence. 41Open this footnote Close this footnote 41 Id. at 930-33 (Gorsuch, J., concurring). Open this footnote Close

II. First Amendment Style

A. First Amendment Originalism?

Judge Gorsuchs originalism has received significant attention. But it has not been evident in his free expression jurisprudence.

Judge Gorsuch did not rely on originalist analysis in any of the opinions discussed above. The closest he came was in Bustos, where he explored the truth defenses history. 42Open this footnote Close this footnote 42 See Bustos v. A & E Television Networks, 646 F.3d 762, 763-64 (10th Cir. 2011). Open this footnote Close Because the case turned on a state law question, 43Open this footnote Close this footnote 43 See id. at 767. Open this footnote Close there was not much room for originalism. The First Amendments role would have been to constrain state law had it not already been more protective than required. 44Open this footnote Close this footnote 44 Id. at 764. Open this footnote Close Accordingly, Judge Gorsuch used history only to flag the issues constitutional backdrop and to support the idea that the American defamation tort is intended to protect the plaintiffs interest in her public reputation. 45Open this footnote Close this footnote 45 See id. Open this footnote Close

More surprising is Van Deelen, 46Open this footnote Close this footnote 46 Van Deelen v. Johnson, 497 F.3d 1151 (10th Cir. 2007). Open this footnote Close which extended the right to petition without discussing its original understanding. There, the Supreme Court had not definitively resolved the First Amendment issuewhether the right contains a public concern requirementand a series of district court cases had come out the other way. 47Open this footnote Close this footnote 47 See id. at 1156-58. Open this footnote Close Yet Judge Gorsuchs only historical reference came after he decided that question. 48Open this footnote Close this footnote 48 See id. at 1158. Open this footnote Close He argued that the right had been clearly established since the Boston Tea Party, defeating qualified immunity. 49Open this footnote Close this footnote 49 Id. Open this footnote Close And that was it. Indeed, Judge Gorsuch made his key analytical moves on the First Amendment issue without citation. 50Open this footnote Close this footnote 50 See id. at 1156. Open this footnote Close

Even if Judge Gorsuch felt the issue was open and shut, his failure to at least give lip service to originalism is surprising. There is certainly room for an originalist analysis of the Petition Clause, as evidenced by the Justices dueling analyses in Borough of Duryea v. Guarnieri. 51Open this footnote Close this footnote 51 564 U.S. 379 (2011). Open this footnote Close There, writing for a seven-Justice majority, Justice Kennedy conducted an originalist analysis of the right to petition beginning with its origins in the Magna Carta. 52Open this footnote Close this footnote 52 Id. at 394-99. Open this footnote Close Justice Kennedy found that a public concern requirement applies to public employees but hedged on whether it extends beyond the employment context. 53Open this footnote Close this footnote 53 Id. Open this footnote Close Justice Scalia, in reply, invoked originalist evidence to raise doubts about whether lawsuits are protected by the Petition Clause at all and to reject the public-concern requirement outright. 54Open this footnote Close this footnote 54 Id. at 403-07 (Scalia, J., concurring in the judgment in part and dissenting in part). Open this footnote Close Thus, Guarnieri highlights a gap between Judge Gorsuch and Justice Scalia with respect to using First Amendment originalism.

It is possible that Judge Gorsuch could use the extra maneuvering room hed have as a Justice to embrace a more originalist approach, but the First Amendment has not exactly provided fertile ground for originalism. 55Open this footnote Close this footnote 55 See Silver & Kozlowski, supra note 9, at 390-91, 423-24 (discussing the lack of originalist sources and arguing originalism fails to restrain judges in this area). Open this footnote Close And nothing in Judge Gorsuchs record suggests that he desires to revitalize First Amendment originalism.

B. Maintaining Minimalism

Throughout his free expression opinions, Judge Gorsuch has shown a consistent tendency to avoid deciding legal issues unnecessarily. His concurrences in Mink and Riddle sought a more cautious resolution to the case at hand than those provided by the majority opinions. Similarly, his majority opinion in Casey followed a fairly intuitive interpretation of Supreme Court precedent, and he took care to include language indicating the decisions limits.

The Mink panel relied on Pring, a Tenth Circuit precedent directly on point that resolved the key First Amendment issue. 56Open this footnote Close this footnote 56 Mink v. Knox, 613 F.3d 995, 1006-07 (10th Cir. 2010) (citing Pring v. Penthouse Intl, Ltd., 695 F.2d 438, 438-43 (10th Cir. 1982)). Open this footnote Close Judge Gorsuch agreed that Pring controlled but criticized the majority for offer[ing] a lengthy new defense of Pring. 57Open this footnote Close this footnote 57 Id. at 1012 (Gorsuch, J., concurring). Open this footnote Close Asserting that reasonable minds can and do differ about the soundness of [Prings] rule, he raised two potential arguments against it: (1) it might unnecessarily constitutionalize[] limitations that state tort law already imposes; and (2) it might unjustly preclude private persons from recovering for intentionally inflicted emotional distress regarding private matters, in a way the First Amendment doesnt compel. 58Open this footnote Close this footnote 58 Id. Open this footnote Close Judge Gorsuch did not necessarily endorse these arguments, but to avoid these thickets, he demurred from the panels discussion of Pring. 59Open this footnote Close this footnote 59 Id. at 1013. Open this footnote Close Indeed, the single most notable aspect of Judge Gorsuchs concurrence may be the language he borrowed from then-Judge Roberts: [I]f it is not necessary to decide more, it is necessary not to decide more. 60Open this footnote Close this footnote 60 Id. (quoting PDK Labs., Inc. v. DEA, 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J., concurring in part and concurring in the judgment)). Open this footnote Close

Judge Gorsuch also displayed his minimalism in Riddle, where the majority elected to examine a campaign finance statute under Buckley v. Valeo 61Open this footnote Close this footnote 61 424 U.S. 1 (1976). Open this footnote Close heightened scrutiny. 62Open this footnote Close this footnote 62 Riddle v. Hickenlooper, 742 F.3d 922, 927-28 (10th Cir. 2014). Open this footnote Close Judge Gorsuch concurred to observe that while the law was unconstitutional, the appropriate scrutiny tier was uncertain. 63Open this footnote Close this footnote 63 Id. at 930-32 (Gorsuch, J., concurring). Open this footnote Close Like in Mink, Judge Gorsuch noted the lack of definitive Supreme Court guidance on the issue. 64Open this footnote Close this footnote 64 Id. at 931. Open this footnote Close Recognizing the difficulty of the scrutiny question, Judge Gorsuch pointed out that the court neednt resolve it. 65Open this footnote Close this footnote 65 Id. at 932. Open this footnote Close Colorados law failed even under the more relaxed Buckley standard: Buckley requires that contribution limits be designed to ward off corruption, but the challenged law was not. 66Open this footnote Close this footnote 66 Id. at 932-33 (citing Buckley, 424 U.S. at 25-29). Open this footnote Close Judge Gorsuch underscored the decisions narrowness by describing how an alternative regime would survive the Riddle courts reasoning. 67Open this footnote Close this footnote 67 Id. at 933. Open this footnote Close The opinion indicates Judge Gorsuchs desire both to limit the decisions scope and to clarify that the political branches retain the ability to solve the problems campaign finance regulation seeks to address.

Casey presents a different flavor of Judge Gorsuchs minimalism in that he is writing for a unanimous panel, not criticizing the breadth of his colleagues opinion. Casey was primarily concerned with resolving the new question put to courts by Garcetti: When is a government employee speaking pursuant to her official duties, rendering her speech unprotected? 68Open this footnote Close this footnote 68 Casey v. W. Las Vegas Indep. Sch. Dist., 473 F.3d 1323, 1328 (10th Cir. 2007) (citing Garcetti v. Ceballos, 547 U.S. 410, 421 (2006)). Open this footnote Close While Casey did not present the same opportunities as Mink and Riddle to avoid deciding certain legal questions, Judge Gorsuchs opinion has a minimalist hue. Importantly, he makes sure to note the limits of the decision, leaving room for other kinds of public employee whistleblowing. 69Open this footnote Close this footnote 69 Id. at 1331. Open this footnote Close

III. First Amendment Substance

Judge Gorsuchs freedom of expression opinions indicate that he is generally satisfied with the scope of First Amendment protections. While Judge Gorsuch has hinted at some areas where he may favor narrower protections than most judges and others where he may favor more expansive protections, his views occupy the mainstream.

Bustos and Mink exemplify Judge Gorsuchs cautious approach. In Bustos, Judge Gorsuch embraces the First Amendments firm protections against tort liability while counseling judges to avoid taking those protections so far that they create libel-proof plaintiffs. 70Open this footnote Close this footnote 70 Bustos v. A & E Television Networks, 646 F.3d 762, 763-65, 769 (10th Cir. 2011). Open this footnote Close This commonsensical limitation is not the work of a judge itching to undo New York Times Co. v. Sullivan. 71Open this footnote Close this footnote 71 376 U.S. 254 (1964). Open this footnote Close

Mink is perhaps more concerning to those who favor a robust First Amendment. At first glance, Judge Gorsuchs concurrence is a benign call for judicial restraint. 72Open this footnote Close this footnote 72 See Mink v. Knox, 613 F.3d 995, 1013 (10th Cir. 2010) (Gorsuch, J., concurring). Open this footnote Close Considering, however, that all the panel did was straightforwardly apply and explain Pring, 73Open this footnote Close this footnote 73 See id. at 1004-08 (majority opinion). Open this footnote Close Judge Gorsuchs concurrence reads as a nudge toward rolling back Prings parody protections. Judge Gorsuchs stance is hardly the stuff of dystopian novels; he suggests only that private figures might sometimes be able to recover for speech on private matters. 74Open this footnote Close this footnote 74 See id. at 1012 (Gorsuch, J., concurring). Open this footnote Close This view has much in common with Justice Alitos dissent from the Courts extension of First Amendment protection to the Westboro Baptist Churchs picketing at a military funeral 75Open this footnote Close this footnote 75 See Snyder v. Phelps, 562 U.S. 443, 463-64 (2011) (Alito, J., dissenting). Open this footnote Close a case in which Justice Scalia joined all seven other Justices in the majority. 76Open this footnote Close this footnote 76 See id. at 446 (majority opinion). Open this footnote Close

Judge Gorsuch inches instead toward expanded protections in Van Deelen. His rhetoric about the liberties . . . essential to the continuity of our democratic enterprise demonstrates his deep respect for the values at stake. 77Open this footnote Close this footnote 77 Van Deelen v. Johnson, 497 F.3d 1151, 1155 (10th Cir. 2007). Open this footnote Close

Conclusion

Ultimately, we do not expect a potential Justice Gorsuch to advocate any major changes to the Courts First Amendment freedom of expression jurisprudence. Methodologically, he cannot be called a Scalia clone. 78Open this footnote Close this footnote 78 Cf. Roeder & Enten, supra note 3. Open this footnote Close Perhaps most significantly, if you were hoping for a Justice who would open up our libel laws, 79Open this footnote Close this footnote 79 See Hadas Gold, Donald Trump: Were Going to Open Up Libel Laws, Politico (Feb. 26, 2016, 2:31 PM EST), http://politi.co/1QlBCjS. Open this footnote Close Judge Gorsuch is not your man.

* J.D. Candidates, Stanford Law School, 2018.

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Mainstream Jurisprudence and Some First Amendment Problems - Stanford Law Review Online

Forbes

The First Amendment Red Herring In The Net Neutrality Debate Forbes Since the transition in January, progressive tech policy groups have worked overtime to shield the Obama Administration's net neutrality rules from President Trump's deregulatory scythe. These rules, adopted by the Federal Communications Commission in ...

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Vice President Mike Pence's vow to go after WikiLeaks for "one of the most significant compromises of national security in recent memory" could run smack into a First Amendment wall, according to one legal expert.

Pence, in an interview with Fox News' Bret Baier Thursday night, promised that those responsible for the 8,000-plus-file dump of CIA secrets, possibly including WikiLeaks founder Julian Assange, will pay a hefty price.

THE WEEK IN PICTURES

"Assange is clearly a media entity, albeit an unorthodox one... so the thief, the person who hands it to WikiLeaks, is the criminal. Not WikiLeaks."

- Judge Andrew Napolitano

"Trafficking in national security information, as is alleged WikiLeaks has done, is a serious offense," Pence said in an exclusive"Special Report"appearance. "This president and this administration will take it very seriously and use the full force of the law, and the resources of the United States, to hold all of those to account that were involved."

The idea of prosecuting Assange has been floating around since 2010, when WikiLeaks shared a massive trove of U.S. secrets leaked by Army Pvt. Chelsea Manning, then known as Bradley Manning. But to date, Assange has not been charged with any crime related to his website.

SESSIONS ASKS REMAINING 46 UNITED STATES ATTORNEYS TO RESIGN

The Australian-born Assange remains holed up in the Ecuadorean Embassy in London where he was granted asylum in 2012, because of a European arrest warrant stemming from sexual assault allegations made by two women in 2010. Assange denies the claims, but risks deportation the moment he steps foot outside of that embassy.

Prosecuting Assange for the document dump would be an uphill battle for the U.S., according to Fox News Senior Judicial Analyst Judge Andrew Napolitano. In the modern, increasingly broad definition of press, WikiLeaks fits the bill, he said.

"If a stolen document containing state secrets gets into the hands of the press, which is loosely defined as any entity in the business of revealing things, and it is a matter of public interest then it can be exposed with impunity," Napolitano said. "Assange is clearly a media entity, albeit an unorthodox one... so the thief, the person who hands it to WikiLeaks, is the criminal. Not WikiLeaks."

Pence is not the only elected official who would like to see Assange behind bars.

"Assange should spend the rest of his life wearing an orange jumpsuit," Sen. Ben Sasse, R-Neb., said in a Thursday statement. "He's an enemy of the American people and an ally to Vladimir Putin."

Tuesday's leak of more than 8,000 documents touched off an international uproar, as some of the spy agency's most closely guarded cyber tools were allegedly revealed to the world. The CIA, according to the files, has the ability to spy on people through their smartphones and certain TVs and computers, expressed interest in hacking into the electrical systems of automobiles and operates a clandestine hacking sites in Germany.

While the First Amendment may protect Assange, it would not cover anyone who illegally leaked the material to his organization. The FBI has already mounted an investigation aimed at finding the mole who divulged the material or any external hacker who retrieved it from CIA servers.

But U.S. investigators will get no help from Assange on that score.

"We're specialists in source protection," Assange said.

Adding to the difficulty in tracing the source of this leak is the fact that many of the tools the government would have used may have just been shared with the public, at least according to WikiLeaks.

"How can you use your full resources when they were just radically depleted?" cybersecurity expert Gregory Keeley wondered. "This is analogous to the nuclear football codes being posted on Facebook."

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First Amendment could protect Assange despite Pence's vow, says legal expert - Fox News

Hugh Stevens is both a nationally known First Amendment and media lawyer and a versatile litigator. For more than 20 years Hugh served as general counsel to the North Carolina Press Association, which designated him as counsel emeritus upon his retirement in 2002. In 2003 the Association honored Hugh by selecting him to receive its W. C. Lassiter Award in recognition of his zealous defense of the First Amendment. In 2006 he became only the second lawyer inducted into the North Carolina Journalism Hall of Fame.

Hugh is a founding member and past chair of the North Carolina Bar Associations Section on Constitutional Rights and Responsibilities. In January, 2015 the Section presented Hugh with its John McNeill Smith Award in recognition of his extraordinary commitment to the ideals embodied in the Constitution of the United States and the Constitution of North Carolina.

Hugh also is a founding board member and past president of the North Carolina Open Government Coalition. Seewww.ncopengov.org.

Hugh continues to serve as general counsel to the North Carolina Press Foundation and as outside counsel to several North Carolina news organizations, including The News & Observer and WRAL-TV in Raleigh. He has represented news organizations, non-media companies and individuals in numerous cases involving libel, privacy and access to government records and proceedings, and was ABC News North Carolina counsel in the landmark newsgathering case of Food Lion v. Capital Cities/ABC, et al.

Hughs significant cases include two that dramatically affected the law of privacy in North Carolina Renwick v. News and Observer Pub. Co., in which the North Carolina Supreme Court declined to recognize the false light tort, and Hall v. Post, in which the court rejected private facts claims. He also was lead counsel for the plaintiff in Womack Newspapers, Inc. v. Town of Kitty Hawk, et al., 181 N.C. App. 1 (2007), in which a weekly newspaper obtained the largest attorney fee award ever paid pursuant to the North Carolina Public Records Law.

Hugh also is a versatile and experienced teacher. From 1985 until 2002 he taught a Free Press and Public Policy seminar at Duke Universitys Terry Sanford Institute of Public Policy. He also has taught First Amendment and media law at the University of North Carolina School of Law and the UNC School of Journalism and Mass Communication. He currently teaches a First Amendment course at North Carolina State Universitys Oscher Institute of Lifelong Learning.

In the early 1990s Hugh conceived the idea for a North Carolina Media Law Handbook and persuaded the Z. Smith Reynolds Foundation to provide the seed money for it. Since 1992 he has served as co-editor and author of the Privacy chapter for the Handbook, which currently is in its fifth (and first entirely electronic) edition. He also is the author of numerous book reviews, law review articles, Continuing Legal Education manuscripts and other publications. He also writes Hughs Views, a personal blog,http://www.hughstevens.blogspot.com/ and comments on First Amendment issues athttp://aboutthefirstamendment.com.

Hugh traces his interest in First Amendment law to his experience as an undergraduate at the University of North Carolina, where he served as co-editor of The Daily Tar Heel and joined other students leaders in fighting to overturn North Carolinas notorious speaker ban law, which forbade left-wing activists and leaders of Communist governments from appearing on university campuses. After completing law school at UNC in 1968, he served four years on active duty as a U.S. Navy JAG officer, during which he honed his trial skills in numerous courts-martial.

In addition to his media law practice, Hugh has extensive experience in commercial and insurance-related litigation. He has tried federal cases involving subjects as diverse as facultative reinsurance; an international airlines web site; fire truck trademarks; insurance broker negligence; ERISA; lawyer advertising; insurance and reinsurance for space satellites and launch vehicles; and defense of a phone card vendor accused of violating North Carolinas anti-lottery law.

Hughs community involvement includes long service as a director of Community Workforce Solutions, a not-for-profit agency that provides training and employment for physically and mentally impaired persons, and of the Episcopal Housing Ministry, which develops and manages apartments and social programs for low-income residents. His service to the University of North Carolina at Chapel Hill, his alma mater, includes membership in the Chancellors Club, the Board of Advisors to the Center for the Study of the American South, and the Board of Directors of the Friends of the Library, of which he is a past chair.

Hugh and his wife Marilyn have three children and five grandchildren. His hobbies are golf, reading, traveling, cooking and Boston Red Sox baseball.

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Hugh Stevens | Stevens Martin Vaughn & Tadych PLLC

New Haven Register

Advocates say First Amendment can withstand Trump attacks New Haven Register In this Feb. 27, 2017 photo, President Donald Trump speaks in the Roosevelt Room of the White House in Washington. After spending months rehashing the brutal GOP primary and bragging about his victory, Trump has quietly launched a charm offensive, ... Letter: First Amendment, safety at issue with social mediaFredericksburg.com The State Of The First AmendmentDaily Caller Letter: First Amendment is the most important oneOroville Mercury Register VVdailypress.com -TCPalm -Neosho Daily News all 16 news articles »

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Advocates say First Amendment can withstand Trump attacks - New Haven Register

BENTON COUNTY -- - Your children versus the constitution. Facebook versus the First Amendment. It's an argument currently under consideration by the U.S. Supreme Court and involves registered sex offenders.

"The U.S. Currently allows each state to decide whether or not a sex offender can have social media accounts, or access to the internet at all. But sex offenders argue it's their Constitutional right to surf the web."

Shannon Jenkins, Sergeant, Benton County Sheriff's Office, "People are going to complain if they can't have something that they want but the law is the law. It could be a condition of their probation or parole that would not allow a sex offender to have any kind of social media or internet access period."

Until the Supreme Court decides on sex offenders' access to the internet, the Benton County Sheriff's Office has an entire cyber division and super computer that monitors the web to stop sex offenders from getting to your kids.

"We do have a group that's actively out there searching for violations or people that are not supposed to be on certain sites. There's ways of finding offenders that are using other names," said Jenkins.

Jenkins says very few police departments have this type of cyber division. Moreover, the techniques they use to find sex offenders online are so secret that they don't share them with the public.

"We have a sex offender division that that keeps up with each offender and they are looking for any social media accounts...Ghost accounts that have been created by sex offenders. They do this everyday. I think it's a pretty unique division. As far as full time -- we have a full department that is fully invested in nothing but cyber crime," said Jenkins.

The Supreme Court has not decided whether it's a right of free speech for sex offenders to be on social media. Its ruling will likely come in May or June. But the Benton County Sheriff's Office will continue to monitor all internet activity.

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Sex Offenders Argue They Have First Amendment to Facebook - KNWA

When the group Support Portsmouth Public Art asked Sue Landerman to make a First Amendment sculpture, she knew exactly what it should look like: Virginian-Pilot columnist Ida Kay Jordan's old desk.

The metal and stone sculpture, "Our First Freedom," will be installed on a pillar on the landing in front of the Portsmouth Public Library on Court Street. The artwork will be unveiled on March 22.

"We chose the site in front of the library also as a symbol; much in the way as the lady of justice is blindfolded in front of a courthouse," said Dr. John Joyce, president of the public art group's board. "There would be no library, no books or newspapers, without this amendment. We also believe that freedom of artistic expression ... originates from this same freedom."

Support Portsmouth Public Art uses grants and donations to commission art throughout the city. Barbara Vincent, the group's secretary, said the funds for Landerman's statue came from a Portsmouth Museum and Fine Arts Commission grant and a donation provided by Friends of the Portsmouth Public Library.

"If we didn't have people contributing to the arts for our city, we wouldn't be able to do this," Vincent said.

Landerman, a local artist, did a lot of research before she started the sculpture. She read the Constitution and a letter that George Washington wrote to Congressabout the first amendment.

"Of course, my creativity wheels started spinning," she said.

She pictured longtime friend Jordan's desk. When she was a reporter at a Pilot bureau in Portsmouth, Landerman said, her desk was in the corner and had a typewriter and big stacks of newspapers. That's what the artist wanted to replicate.

"Ida Kay, she's like legendary in Portsmouth," Landerman said.

The sculpture, which is 45 inches tall and just under 4 feet wide, took several months to complete. Landerman enlisted Newport Newssculptor Jon Ware to help construct the desk.

The finished work also features a typewriter, Washington's letter and a stack of papers topped by an issue of Currents,in which Jordan has a recurring column.

"I feel very, very honored," Jordan said, although she was abit embarrassed to have her desk immortalized.

"Oh my goodness, I hope it's not realistic because I'm a mess; a typical old-fashioned reporter."

Landerman said it's the perfect time to honor the First Amendment.

"(It) has certainly been challenged more lately," Vincent said. "We hope that this sculpture will make people think about the value of (the First Amendment) because it's certainly what separates us from other societies."

And the artwork itself beautifies the city, she said.

"Public art has many functions. It creates conversation, it inspires imagination, it can make a city a destination."

Landerman wants this piece of art to inspire action.

"I hope that (viewers) go home, go online, Google the Constitution and read it," she said. "And share it with your children and grandchildren. They'll never forget it."

Link:
Ida Kay Jordan's former desk at the Pilot immortalized in First Amendment sculpture - Virginian-Pilot

Clay Calvert, University of Florida

(THE CONVERSATION) Senate Judiciary Committee hearings for United States Supreme Court justice nominee Neil Gorsuch are fast approaching.

Its time to consider some key questions about First Amendment speech rights the senators should ask during the constitutionally mandated advice-and-consent process.

These hearings often are contentious. That was the case for Justice Clarence Thomas in the early 1990s. And they surely wont be a cake walk this time, given Democratic anger over Republican inaction on Merrick Garland, former President Barack Obamas nominee to replace Justice Antonin Scalia, who died in February 2016.

The First Amendment questions Id pose to Gorsuch are critical because the man who nominated him, President Donald J. Trump, bashes the press as the enemy of the people yet proclaims no one loves the First Amendment more than he.

An obvious question for Judge Gorsuch is his view of the courts 2010 ruling in Citizens United v. Federal Elections Commission. That five-to-four decision divided sharply along perceived partisan lines. It affected the speech rights of corporations and unions in funding political ads shortly before elections. Committee Democrats no doubt will grill Gorsuch about Citizens United.

As the director of the Marion B. Brechner First Amendment Project at the University of Florida, I would like to suggest at least three other timely and vital questions he should be asked about speech rights but that I doubt he will face.

The first question Id pose to Gorsuch involves an issue the Supreme Court has never tackled does the First Amendment protect a persons right to record police officers doing their jobs in public places?

Its a vital question in light of incidents such as the April 2015 shooting in the back of unarmed African-American Walter Scott by white police officer Michael Slager in South Carolina. A video of it was captured on a smartphone by barber Feidin Santana while walking to work. It was key evidence in Slagers murder trial which ended with a hung jury.

Without guidance from the Supreme Court about recording cops in public venues, lower courts have had to sort it out for themselves.

Just last month, the U.S. Court of Appeals for the Fifth Circuit concluded in Turner v. Driver that First Amendment principles, controlling authority, and persuasive precedent demonstrate that a First Amendment right to record the police does exist, subject only to reasonable time, place and manner restrictions. Thats a positive step in terms of creating a constitutional right to record cops within the Fifth Circuit, which includes Texas, Louisiana and Mississippi. But just what constitutes a reasonable restriction is extremely vague and problematic, especially because judges usually defer to officers judgments.

Worse still, some courts havent even recognized any First Amendment right to record police.

In the case of Fields v. City of Philadelphia, now under review by the U.S. Court of Appeals for the Third Circuit, a federal judge ruled there is no First Amendment right to film police in public spaces unless the person recording does so with the intent of challenging or criticizing police actions. In brief, there is no First Amendment right to neutrally record police as a bystander or journalist in Philadelphia.

Gorsuch thus should be asked: Do citizens have a First Amendment right to record police doing their jobs in public places and, if there is such a right, what if any are the specific limits on that right?

Trumps presidency ushers in a new era of confrontational political activism. Protests against Trump and rallies for him are common, with some ending in arrests. Berkeley, California home of the 1960s free speech movement saw 10 arrests this month when pro- and anti-Trump individuals clashed.

Gorsuch should be questioned about the First Amendment right to peaceably assemble and the limits on that right affecting political demonstrations on public streets, sidewalks and parks. The Supreme Court privileges such quintessential public forums for picketing and protests, and it carefully reviews any restrictions imposed there on speech and assembly. Would Gorsuch follow that tradition of protection?

Disturbingly, The New York Times reported earlier this month that lawmakers in more than 15 states are considering bills that would curb, to varying degrees, the right to protest. Some measures, such as Florida Senate Bill 1096, do so by requiring a special event permit be obtained before any protest on a street, thus stifling spontaneous demonstrations that might occur after a controversial executive order or a startling jury verdict.

Requiring the government to grant a permit before one can protest constitutes a prior restraint on speech. Prior restraints, the Supreme Court has repeatedly found, are presumptively unconstitutional.

Gorsuch thus should be asked: What, if any, limits are there on the First Amendment right to engage in political speech in public spaces, including streets, sidewalks and parks?

Finally, Id ask Gorsuch for his views about the First Amendment right to offend. Its an important topic today for three reasons.

First, protesters may use offensive language to capture attention and show the passion behind their views. The Supreme Court traditionally protects offensive political speech, as it famously did in 1971 in Cohen v. California. There it ruled in favor of Paul Robert Cohens First Amendment right to wear a jacket with the words F the Draft in a Los Angeles courthouse hallway.

Second, some believe theres a pall of political correctness in society, particularly in higher education. Some students may be deterred from using certain language or expressing particular viewpoints for fear they will offend others and thus be punished.

Third, the Supreme Court is set to rule in the coming months in a case called Lee v. Tam. It centers on the power of the U.S. Patent and Trademark Office to deny an Asian-American band called The Slants trademark registration over that name because it allegedly disparages Asians. The court heard oral argument in the case in January.

Id thus ask Gorsuch: When does offensive expression - in particular, offensive speech on political and social issues - lose protection under the First Amendment?

Gorsuch already has submitted written answers to the Judiciary Committee on some issues, but not on the questions raised here. These topics filming cops in public, protesting on streets and sidewalks, and using offensive language seem especially relevant in a turbulent Trump era.

This article was originally published on The Conversation. Read the original article here: http://theconversation.com/neil-gorsuch-and-the-first-amendment-questions-the-senate-judiciary-committee-should-ask-73887.

Read more here:
Neil Gorsuch and the First Amendment: Questions the Senate Judiciary Committee should ask - mySanAntonio.com

Regarding the letter to the editor in Amarillo Globe-News (Letter: AGN needs to serve its conservative readers, Feb. 23, amarillo.com), I am astonished that a conservative (as the letter writer appears to be) would assault the First Amendment rights of the press or anyone else.

Once elected to public office, you are fair game for criticism.

Presidents Barack Obama and George W. Bush were caricatured as big-eared monkeys or elfin creatures, and most public figures have drawn criticism in print and editorial cartoons.

I hope AGN will continue to furnish their readers with timely and entertaining news and commentary, including the brilliant observations of (syndicated editorial) cartoonist Jeff Stahler and others.

The First Amendment was first for a reason.

When an individual in this society can tell someone else what to think, and tell the press what to print, we are in trouble.

Steve Close

Amarillo

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Letter: First Amendment was first for a reason - Amarillo.com