Category Archives: First Amendment

In honor of Constitution Day on Wednesday, Sept. 17, University of Texas at Austin School of Law Distinguished Teaching Professor David Rabban 71 gave a lecture at Olin Library titled Free Speech, Academic Freedom, and the American University. The Friends of the Wesleyan Library sponsored the lecture, with Library Assistant Jennifer Hadley spearheading the eventsorganization.

The talk centered on the First Amendment rights of students, professors, and universities as institutions. Rabban led the audience through the history of legal cases on free speech and academic freedom from the1950s.

Rabban addressed the hotbed issues surrounding the First Amendment today. He allotted a significant amount of time to the recent case of Professor Steven Salaitas lack of consideration for a job at the University of Illinois following several anti-Israel posts on his Twitteraccount.

Furthermore, Rabban covered the constitutional validity of university-implemented speech codes, student and professorial expressions of political affiliations, and the extent to which the university as an institution may control when First Amendment rights apply to itsstudents.

In an interview with The Argus, Rabban explained why he chose this particular subject for a Constitution Daylecture.

I thought that Wesleyan students would have interest in free speech topics, Rabban said. I wanted to recognize how many important cases dealing with First Amendment issues have arisen in American universities. The university has been an important place for Constitutional debate and litigation. I also thought that the notion of First Amendment freedom as differentiated from the First Amendment in general might be an interesting topic for the audience to thinkabout.

Rabban began his talk with a staggering list of cases in which the First Amendment rights of a student, professor, or university were the subjects of major legal contention. In this historical dialogue, he alluded to specific legal cases, including state legislatures compelling universities to include discussions of creation science in classroom settings, whether or not universities can refuse to reappoint a professor fired on the grounds that he was a communist, and a universitys right to fire a professor on the grounds of specific works that zepublished.

Rabban emphasized that the First Amendment to the Constitution applies only to stateaction.

I think that many Americans believe that the First Amendment protects citizens against private action as well as state action, Rabban said. But this common belief is incorrect. Private violations on speech do not violate constitutional rights. Translated into the university context, private universities, including their faculty and students, as well as public universities, are protected against the government. Wesleyan, as well as the University of Connecticut, can obtain relief from legislation that violates the FirstAmendment.

Rabban explained that when university trustees or administrators take action against faculty or students, the First Amendment applies only at state universities. Therefore, Rabban pointed out that faculty and students at the University cannot make First Amendment claims against the University and the Board of Trustees. Rabban further acknowledged that this formal constitutional distinction does not always apply in practice because private universities can voluntarily accept the limitations that the First Amendment imposes on publicuniversities.

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Annual Constitution Day Lecture Addresses Student First Amendment Rights

Texas highest criminal court struck down part of a law banning upskirt photos on Wednesday, arguing that photos taken without permission in public are entitled to First Amendment protections. Outlawing improper photography or visual recording, the Texas Court of Criminal Appeals panel ruled, would be a violation of federal free-speech rights and a paternalistic effort to regulate the photographers thoughts.

The camera is essentially the photographers pen and paintbrush, Judge Sharon Keller wrote in the courts 8-1 opinion. A persons purposeful creation of photographs and visual recordings is entitled to the same First Amendment protection as the photographs and visual recordings themselves.

According to the Houston Chronicle, the case involved Ronald Thompson, who was charged with 26 counts of improper photography in 2011 after taking underwater pictures of swimsuit-clad children at a San Antonio water park. Thompson challenged the constitutionality of the improper photography ban before his case even went to trial, claiming that a plain reading of the law would place street photographers, entertainment journalists, arts patrons, pep rally attendees and even the harmless eccentric at risk of incarceration.

Prosecutors argued that the laws intent element for example, trying to do something unlawful like taking an illicit photo of someone without their consent should place the expressive activity outside the bounds of First Amendment protection. But, according to the appeals panel, protecting citizens from being made the subject of expressive surreptitious photography unknowingly or without permission is actually the governments way of protecting them from being thought of sexually, which runs the risk of infringing upon other peoples First Amendment rights.

Protecting someone who appears in public from being the object of sexual thoughts seems to be the sort of paternalistic interest in regulating the defendants mind that the First Amendment was designed to guard against, Keller wrote. We also keep in mind the Supreme Courts admonition that the forms of speech that are exempt from First Amendment protection are limited, and we should not be quick to recognize new categories of unprotected expression.

A legal scholar told the Chronicle that the court issued a sound ruling, saying that it cannot be made a crime in the United States to look at someone in public and think lascivious thoughts about them. But such an analysis fundamentally misunderstands the difference between looking at someone in a public space and photographing them without consent. The thinking of lascivious thoughts is irrelevant, because thats not what laws against taking upskirt photos and other illicit creepshots are meant to prevent. They are meant to prevent the violation of peoples physical autonomy in public spaces; they are meant to prevent sexual harassment. Apparently, though, its not harassment when its just a surreptitious photo thats art.

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Texas court throws out upskirt photo law, because banning creepshots is paternalistic

A permit to protest has been the practice for decades.

Click here to watch Catherine Cruz's report.

Groups planning to demonstrate for or against bills under consideration at the capitol had to first ask permission.

"The new rules make it easier for groups to exercise their First Amendment rights," said American Civil Liberties Union attorney Dan Gluck.

The ACLU filed suit earlier this year after trying for three years to informally work out the permit problem with the state.

The two sides reached a settlement this month agreeing to drop the requirement that groups apply for permits, indemnify the state and obtain insurance in order to gather at the rotunda.

"As a general rule you don't have to get the government's permission before you exercise your First Amendment rights. You dont have to get the government's okay to have a demonstration, and a lot of these rules impacted people's ability to do that," said Gluck.

That lawsuit was brought by the ACLU on behalf of The Drug Policy Action Group which ran up against the roadblocks trying to organize a demonstration.

Pam Licthy called the settlement a win for grassroots groups who need to respond quickly without bureaucracy getting in the way of the message.

The state attorney general David Louie issued this statement.

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Free speech win over demonstrations at state Capitol

Episode 20- Clip 1- Hartford Shooting and the First Amendment

By: Summary Judgment Talk Show

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Episode 20- Clip 1- Hartford Shooting and the First Amendment - Video

Ways To Memorize The First Amendment

By: College Courses

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Ways To Memorize The First Amendment - Video

Im delighted to report that yesterday the Texas Court of Criminal Appeals handed down Ex parte Thompson (Tex. Ct. Crim. App. Sept. 17, 2014) (8-to-1, with Judge Meyers dissenting without opinion). This was a UCLA First Amendment Amicus Brief Clinic case, in which my student Samantha Booth and I wrote an amicus brief on behalf of the Reporters Committee for Freedom of the Press. (Many thanks again, by the way, to Cam Barker (YetterColeman LLP) for all his help as local counsel.)

The courts opinion is a victory for the right to take photographs in public even when a statute barring such photograph is limited to photography of people without their consent and with intent to arouse or gratify sexual desire, but of course equally when the photographs lack such an intention. The court struck down the Texas improper photography statute, which read,

A person commits an offense if the person:

(1) photographs or by videotape or other electronic means records a visual image of another at a location that is not a bathroom or private dressing room:

(A) without the other persons consent; and

(B) with intent to arouse or gratify the sexual desire of any person.

Heres a quick summary of the courts reasoning:

1. Taking photographs in public places is generally constitutionally protected, because photographs regardless of their artistic merits are generally protected expression, and the act that creates the end product is likewise protected:

The camera is essentially the photographers pen or paintbrush. Using a camera to create a photograph or video is like applying pen to paper to create a writing or applying brush to canvas to create a painting. In all of these situations, the process of creating the end product cannot reasonably be separated from the end product for First Amendment purposes. This is a situation where the regulation of a medium inevitably affects communication itself. We conclude that a persons purposeful creation of photographs and visual recordings is entitled to the same First Amendment protection as the photographs and visual recordings themselves.

2. This First-Amendment-protected conduct doesnt lose its protection even when the photographer is intending to arouse or gratify sexual desires:

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Volokh Conspiracy: Texas highest criminal court strikes down improper photography statute

Growing Together: Mexico and the United States
On September 12, 2014, The McCain Institute co-hosted Growing Together: Mexico and the United States with the Center for American Progress at The First Amendment Forum at The Walter Cronkite...

By: The McCain Institute

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Growing Together: Mexico and the United States - Video

WE ARE, as it always seems, "at a pivotal moment in American history." At least that's what Sens. Tom Udall and Bernie Sanders maintained in a melodramatic Politico op-ed last week as they explained their efforts to repeal the First Amendment.

Let me retort in their language:

It's true that building the United States has been long, arduous and rife with setbacks. But throughout the years, the American people have repelled efforts to weaken or dismantle the First Amendment. We have weathered the Sedition Act of 1918, a law that led to the imprisonment of innocent Americans who opposed the war or the draft. Since then, we have withstood numerous efforts to hamper, chill and undermine basic free expression in the name of "patriotism." We have, however, allowed elected officials to treat citizens as if they were children by arbitrarily imposing strict limits on their free speech in the name of "fairness."

But nowadays, after five members of the Supreme Court upheld the First Amendment and treated all political speech equally, liberal activists and Democrats in the Senate would have us return to a time when government dispensed speech to favored institutions--as if it were the government's to give.

In 2010, the Supreme Court issued a 5-4 opinion striking down major parts of a 2002 campaign-finance reform law in Citizens United v. Federal Election Commission. This case and subsequent rulings, including McCutcheon v. FEC, have led to more political activism and more grass-roots engagement than ever before. In the 2012 presidential election, we quickly saw the results. More Americans voted than in any election; more minorities voted; more Americans engaged in more debate and had more information in their hands than ever before. More than 60 percent of all those super PAC funds came from just 159 donors, each of whom gave more than $1 million. And still, every vote held the same sway. You may be persuaded by someone, but no one can buy your vote. I wish the same could be said for your senators.

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The Constitution protects the rich, too

MAYPORT NAVAL BASE First Amendment Test (6.5 out of a 10)
Paid a personal visit to the Mayport Naval Station in Jacksonville, Florida on Friday, September 12, 2014. The Police lied and tried to intimidate EOG who was my backup. The officer told EOG...

By: F.T.G.

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MAYPORT NAVAL BASE First Amendment Test (6.5 out of a 10) - Video

WE ARE, as it always seems, at a pivotal moment in American history. At least thats what Sens. Tom Udall and Bernie Sanders maintained in a melodramatic Politico column recently as they explained their efforts to repeal the First Amendment.

Let me retort in their language:Its true that building the United States has been long, arduous and rife with setbacks. But throughout the years, the American people have repelled efforts to weaken or dismantle the First Amendment. We have weathered the Sedition Act of 1918, a law that led to the imprisonment of innocent Americans who opposed the war or the draft. Since then, we have withstood many efforts to hamper, chill and undermine basic free expression in the name of patriotism. We have, however, allowed elected officials to treat citizens as if they were children by arbitrarily imposing strict limits on their free speech in the name of fairness.But nowadays, after five members of the Supreme Court upheld the First Amendment and treated all political speech equally, liberal activists and Democrats in the Senate would have us return to a time when government dispensed speech to favored institutions as if it were the governments to give.

In 2010, the Supreme Court issued a 5-4 opinion striking down major parts of a 2002 campaign-finance reform law in Citizens United v. Federal Election Commission. This case and subsequent rulings, including McCutcheon v. FEC, have led to more political activism and more grass-roots engagement than ever before. In the 2012 presidential election, we quickly saw the results.

More Americans voted than in any election; more minorities voted; more Americans engaged in more debate and had more information in their hands than ever before. More than 60 percent of all those super PAC funds came from just 159 donors, each of whom gave more than $1 million. And still, every vote held the same sway. You may be convinced by someone, but no one can buy your vote. I wish the same could be said for your senators.

Even less worrisome is the propaganda surrounding scary-sounding dark money dollars spent by groups that do not have to disclose their funding sources. The 2012 elections saw almost $300 million spent on engagement in our democratic institutions, and the 2014 midterm elections could see as much as $1 billion invested in political debate. That means more democratization of media and more challenges to a media infrastructure that once managed what news we were allowed to consume. Still, no one can buy your vote.

No single issue is more important to the needs of average Americans than upholding the Constitution over the vagaries of contemporary political life. The people elected to office should be responsive to the needs of their constituents. They should also be prepared to be challenged. But mostly, they should uphold their oath to protect the Constitution rather than find ways to undermine it.

When the Supreme Court finds, for purposes of the First Amendment, that corporations are people, that writing checks from the companys bank account is constitutionally protected speech and that attempts to impose coercive restrictions on political debate are unconstitutional, we realize that we live in a republic that isnt always fair but is, for the most part, always free.

Americans right to free speech should not be proportionate to their political power. This is why its vital to stop senators from imposing capricious limits on Americans.

It is true that 16 states and the District of Columbia, along with more than 500 cities and towns, have passed resolutions calling on Congress to reinstitute restriction on free speech. Polls consistently show that the majority of Americans support the abolishment of super PACs. So its important to remember that one of the many reasons the Founding Fathers offered us the Constitution was to offer a bulwark against democracy. Senators may have an unhealthy obsession with the democratic process, and Supreme Court justices are on the bench for life for that very reason.

Last week, Democrats offered an amendment to repeal the First Amendment in an attempt to protect their own political power. Whiny senators most of them patrons to corporate power and special interests engaged in one of the most cynical abuses of their power in recent memory. Those who treat Americans as if they were hapless proles unable to withstand the power of a television commercial are the ones who fear speech. Thats not what the American republic is all about.

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David Harsanyi The senators who really threaten America