Nahmod Law

Archive for the ‘First Amendment’ Category

Political Protests and the First Amendment (Video)

On March 2, 2017, IIT Chicago-Kent College of Law presented a two hour program for both non-lawyers and lawyers on political protests and free speech. This program was prompted by the suddenly developing political protests directed at the President’s restrictive travel ban and his proposed actions against immigrants.

I spoke for the first half hour and provided a First Amendment overview (what I termed a “primer”) as well as concrete suggestions for political protestors.

In the second and third half-hours two highly regarded Chicago attorneys, Molly Armour and Ed Mullen, discussed their experiences with political protests and law enforcement. They also offered advice to protestors.

The final half hour, which was quite dynamic, addressed questions from a very engaged audience.

If you are interested in the dos and don’ts of political protest, then this is the video for you. I recommend it highly.

Here is the link: https://kentlaw.hosted.panopto.com/Panopto/Pages/Viewer.aspx?id=fc5b4a7c-841e-4db0-a43f-a9d7fad63f6d

I invite you to follow me on Twitter: @NahmodLaw

Written by snahmod

March 19, 2017 at 9:47 pm

Posted in First Amendment

My Lecture on the Supreme Court, Free Speech and Hate Speech (Audio)

One of my most popular posts is Know Your Constitution (5): Free Speech and Hate Speech, which was published on December 4, 2013, and can be found here: https://nahmodlaw.com/2013/12/04/know-your-constitution-5-free-speech-and-hate-speech/

More recently, I was invited to lecture on this topic to a general audience at Moriah Congregation in Deerfield, IL, on November 30, 2016. The attentive and engaged audience consisted of adults attending a continuing series of lectures on Henry Ford and anti-Semitism, with my lecture coming near the end of the series.

Following a gracious introduction by Bruce Ogron, an attorney and graduate of IIT Chicago-Kent College of Law, I spoke for 45 minutes and then answered some very good questions for another 15 minutes. I enjoyed the experience immensely.

I spoke first about common erroneous assumptions about the Supreme Court. I then moved into the mainstream theories or purposes of free speech, followed by three important considerations in free speech case law, and I concluded with a discussion of hate speech.

I am very pleased to offer this audio of my lecture.

View or Download file via Google Drive, open on Panopto or listen here (no video):

Written by snahmod

December 14, 2016 at 2:35 pm

My First Amendment Class on Access to the Press and to Information (Audio)

I audio-recorded a 1 1/2 hour makeup class in my First Amendment course. This class took place on November 18, 2015, and dealt with freedom of the press, access to the press and press/public access to information.

This class began with my brief review of the preceding class that addressed the First Amendment as a shield for the press, including Cohen, Branzburg and Zurcher.

I then got right into the cases that address the First Amendment as a sword, including Red Lion, Miami HeraldRichmond Newspapers and Houchins.

I hope you find it of interest.

Check it out below.

listen online:

  • or download file here

 Follow me on Twitter @NahmodLaw

Written by snahmod

December 28, 2015 at 10:57 am

Posted in First Amendment

The Confederate Flag and the Walker Case: A Video

Several weeks ago the Chicago-Kent Federalist Society sponsored a discussion of the Confederate Flag. John Kunich (University of North Carolina at Charlotte) and I spoke about the symbolism of the Confederate Flag.

In particular I discussed the Supreme Court’s recent  important First Amendment Confederate Flag/license plate decision in Walker v. Texas Div., Sons of Confederate Veterans, Inc. (No. 14-144, 6-18-15). I also addressed government speech and forum analysis.

The program lasted for 50 minutes, and I was the second speaker. There was no followup discussion.

Here is the video of that program. I hope you find it of interest.

 

I invite you to follow me on Twitter @NahmodLaw.

 

Written by snahmod

November 24, 2015 at 9:59 am

Posted in First Amendment

All My First Amendment Posts to 10-12-15

This is Part III of the All My Posts series to 10-12-15. Part I, dealing with section 1983 and Part II, dealing with Constitutional Law,  were also posted today.

Please search within this post for any cases, topics and the like that you are interested in.

PART III: FIRST AMENDMENT

Freedom of Speech (1): Three Rationales

Freedom of Speech (2): Content, Medium and Forum

Freedom of Speech (3): The Clear and Present Danger Years

Freedom of Speech (4): Internet Threats and Elonis v. United States

Public Employee Free Speech: The New Regime

From Buckley to Citizens United (Part One of Two)

From Buckley to Citizens United (Part Two of Two)

Government Speech and Justice Souter (1): Introduction

Government Speech and Justice Souter (2): Rust v. Sullivan

Government Speech and Justice Souter (3): Rosenberger v. Rectors of the University of Virginia

Government Speech and Justice Souter (4): Glickman and Finley

Government Speech and Justice Souter (5): Univ. of Wisconsin v. Southworth

Government Speech and Justice Souter (6): Johanns v. Livestock Marketing Association

Government Speech and Justice Souter (7): Garcetti v. Ceballos

Government Speech and Justice Souter (8): Pleasant Grove City v. Summum

Government Speech and Justice Souter (9): A Short Coda

Animal Cruelty, Crush Videos and U.S. v. Stevens (Video)

Borough of Duryea v. Guarnieri: New Supreme Court Section 1983 Public Employee Petition Clause Case

Certiorari Granted in Reichle v. Howards: A First Amendment Retaliatory Arrest Case

New Supreme Court Decision: Reichle v. Howards and First Amendment Retaliatory Arrests

First Amendment Retaliatory Arrest Decisions After Reichle

New Supreme Court Decision on Free Speech and Government Funding: The Agency for International Development Case

New University Academic Freedom Decision from Ninth Circuit: Demers v. Austin

Cert Granted in New Public Employee Free Speech Case: Lane v. Franks

Law Professors’ Amicus Brief in Lane v. Franks

A Short Video on Lane v. Franks

Lane v. Franks: New Supreme Court Public Employee Free Speech Decision

The “Ground Zero Mosque”: A Discussion (Video)

The Religion Clauses: ‘Tis the Season

New Supreme Court Religion Decision: Hosanna-Tabor Evangelical Lutheran Church and School

Town of Greece v. Galloway: Pending Supreme Court Decision on Legislative Prayer and the Establishment Clause

A Video Presentation on Town of Greece v. Galloway

Remarks on the Establishment Clause and Town of Greece

A Video: The Religion Clauses, Town of Greece and Hobby Lobby

Written by snahmod

October 12, 2015 at 2:52 pm

Anti-SLAPP Statutes and State-Law Claims: Is a City Protected?

Anti-SLAPP Statutes: Background

I blogged some time ago about anti-SLAPP statutes and section 1983 both in state courts and federal courts. Readers will want to consult both my post of July 23, 2010, and my post of April 27, 2011, for those discussions and relevant background.

SLAPP (Strategic Litigation Against Public Participation) lawsuit is one that is filed by the plaintiff in order to chill the exercise of the defendant’s First Amendment right to petition the government for redress of grievances or for otherwise engaging in speech.

In contrast, an anti-SLAPP statute provides procedural and substantive protection for the defendant in cases where the plaintiff’s lawsuit is grounded on a good faith communication in furtherance of the right to petition or free speech.

Consider the following Washington Supreme Court decision holding that a city was not protected by an anti-SLAPP statute in connection with state-law claims (not section 1983 claims).

Henne v. City of Yakima, No. 89674-7 (Wash. Jan. 22, 2015).

In Henne, a former police officer sued the City of Yakima under state law, alleging that it had created a hostile work environment because of the way it handled an investigation into complaints against the officer. The city moved to dismiss on the ground that it was protected by Washington State’s anti-SLAPP statue, Revised Code of Washington §4.24.525.

Ultimately, the Washington Supreme Court, in opinion by Justice Sheryl Gordon McCloud, ruled against the city on the ground that the plaintiff’s state-law lawsuit was based on communications made by other officers to the city and not communications made by the city itself It declared:

“We hold that a governmental entity like Yakima cannot take advantage of the anti-SLAPP statutes at least where, as here, the challenged lawsuit is not based on the government’s own communicative activity.”

The Washington Supreme Court expressly did not decide whether a city could ever be protected by the anti-SLAPP statute. However, it observed that the statute “protects the ‘right of free speech’ and ‘the constitutional right of petition,’ (RCW 4.24.525(2)), rights that the constitution grants to individuals against the government not to the government against individuals.” (emphasis added).

Justice Mary E. Fairhurst, joined by Justices Charles W. Johnson and Mary I. Yu. Fairhurst, wrote a separate opinion arguing that cities should be able to use the anti-SLAPP statute, but concurred with the majority because she said the underlying suit wasn’t a SLAPP suit.

Comments

1. The unresolved issue in Henne is one of statutory interpretation: does the Washington State anti-SLAPP statute, which refers to “persons,” cover cities?

2. The deeper conceptual issue is whether cities have any petition or free speech rights under the United States Constitution. See my post on government speech of March 28, 2011, and the immediately preceding posts on Justice Souter’s views of government speech.

3. Whatever the answer to the conceptual question, a state can protect cities in an anti-SLAPP statute even if they do not have such petition or free speech rights.

2. If a particular anti-SLAPP statute is interpreted to protect cities, then that, of course, has practical implications for its application to section 1983 claims as well, and not just state-law claims.

I invite you to follow me on Twitter: @NahmodLaw

Written by snahmod

February 9, 2015 at 2:02 pm

Freedom of Speech (4): Internet Threats and Elonis v. United States

Prior Related First Amendment Posts

I previously blogged about some of the basics of free speech doctrine.

I addressed its three primary rationales–marketplace of ideas, self-government and individual autonomy–on January 19, 2010. I next considered the roles of content, medium and forum in free speech jurisprudence on January 29, 2010. I then discussed the early years of free speech doctrine–the clear and present danger years–on February 14, 2010. Finally, in an internationally popular post for non-lawyers, as part of my Know Your Constitution series, I addressed hate speech on December 4, 2013.

In 2015, the Supreme Court will decide Elonis v. United States, No. 13-983 (argued 12-1-14), a case involving internet threats. So I’d like to say some things about the relevant free speech jurisprudence as well as the case itself.

Free Speech Background: The “Multi-Tier” Approach and True Threats

There is,  it may surprise some to know, a hierarchy of speech that receives greater or lesser protection depending on its content.  Political speech receives the highest First Amendment protection; commercial speech typically receives intermediate level protection; and obscenity, fighting words, child pornography and “true threats” receive no First Amendment protection at all. These last kinds of speech are in a kind of First Amendment hell, so to speak, because each of them is considered to have little or no First Amendment value. See Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). Once it is determined that the relevant speech fits into this last group, then it is not covered by the First Amendment.

The Supreme Court defined a true threat in Virginia v. Black, 538 U.S. 343 (2oo3), a case involving cross-burning, in the following way: the speaker means to communicate a serious expression of  intent to commit an act of unlawful violence against an individual or group of individuals. The essence of a true threat is intimidation because it places the victim in fear of bodily harm or death, although the speaker need not necessarily intend to carry out the threat. In Black itself, the statute required an intent to intimidate and various persons testified that they were in fact intimidated.

The theory is that this kind of threatening speech–assuming that one considers it “speech” rather than “conduct”–deserves no First Amendment protection because it silences speech by placing victims in fear of bodily harm or death.

The Issue in Elonis: Must the Defendant Subjectively Intend to Intimidate?

Elonis was convicted under 18 U.S.C. § 875(c) for “transmit[ting] in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another….” More specifically, he was convicted of using the internet over a period of time to threaten his wife,  employees of the Pennsylvania State Police and Berks County Sheriff’s Department, a kindergarten class, and an FBI agent. The defendant contended the trial court incorrectly instructed the jury on the standard of a true threat. The court gave the following jury instruction:

A statement is a true threat when a defendant intentionally makes a statement in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of an intention to inflict bodily injury or take the life of an individual.

Elonis contended that the Supreme Court in Black had effectively required, as part of a valid true threat conviction, that a defendant must subjectively intend to intimidate, that he did not subjectively intend to intimidate, and that it was not sufficient that he could reasonably foresee (a negligence standard) that his or her statement would be interpreted as expressing an intention to commit bodily harm or cause death. The Third Circuit rejected Elonis’s argument, and the Supreme Court granted certiorari.

Comments

1. The Court could model the true threat doctrine on the incitement doctrine of Brandenburg v. Ohio, 395 U.S. 44 (1969), and rule that a true threat defendant (1) must subjectively intend to intimidate and (2) the statement must reasonably be so understood by its targets. This would provide the maximum breathing space for free speech, but at a major cost to those who were targets of a “clever threat-maker” as Elonis himself may have been.

2. The Court could model the true threat doctrine on the fighting words doctrine which, as Justice Kagan pointed out in oral argument, only requires an inquiry into the content of the speech–do the words amount to in-your-face epithets or personal abuse likely to provoke the average person to retaliate?–and not the subjective intent of the speaker. This position seems close to that of the Third Circuit in Elonis.

3. The Court could find a middle-ground state of mind requirement such as recklessness, by analogy to the knowing or reckless falsehood defamation standard of New York Times v. Sullivan, 376 U.S. 254 (1964). This would minimize the problem of the clever threat-maker but also provide a bit more free speech breathing space on the internet and elsewhere than the Third Circuit’s negligence approach. Moreover, it would preclude the criminalizing of statements on the internet and elsewhere that were not intended to intimidate but did so innocently in fact even if later determined to have been negligent.

Although predicting Supreme Court outcomes is not for the faint of heart, I expect that the Court will go with a variation of #3.

 

I invite you to follow me on Twitter @NahmodLaw

 

 

 

 

 

Written by snahmod

December 15, 2014 at 4:53 pm