Monthly Archives: June 2017

The Supreme Court ruled Monday that a law that prohibits the government from registering trademarks that disparage others violates the First Amendment, a decision that could impact the Washington Redskins efforts to hang on to its controversial name.

Justice Samuel A. Alito Jr. delivered the opinion for a largely united court. He said the law could not be saved just because it evenhandedly prohibits disparagement of all groups.

That is viewpoint discrimination in the sense relevant here: Giving offense is a viewpoint, Alito wrote.

He added that the disparagement clause in the law offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.

All of the participating justices Neil M. Gorsuch was not on the court when the case was argued joined that part of Alitos opinion. Four justices peeled off from parts of the opinion where they say Alito opined on more than what was needed to decide the case.

The trademark office in 2011 said registering the trademark of the Slants, an Asian American rock group, would violate a part of the 1946 Lanham Trademark Act that prohibits registration of a trademark that may disparage ... persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.

The office said the name was likely to disparage a significant number of Asian Americans. But founder Simon Tam said the point of the bands name is just the opposite: an attempt to reclaim a slur and use it as a badge of pride.

In a Facebook post after the decision, Tam wrote:

After an excruciating legal battle that has spanned nearly eight years, were beyond humbled and thrilled to have won this case at the Supreme Court. This journey has always been much bigger than our band: its been about the rights of all marginalized communities to determine whats best for ourselves.

Tam lost in the first legal rounds. But then a majority of the U.S. Court of Appeals for the Federal Circuit said the law violates the First Amendments guarantee of free speech. The government may not penalize private speech merely because it disapproves of the message it conveys, a majority of that court found.

The outcome is likely to affect the legal case of the Washington Redskins, whose trademark registration was revoked in 2014 under the same disparagement clause.

The Redskins filed an amicus brief supporting the Slants, which was cited in the opinion. The Washington football teams case, however, is moving on a separate track.

(Jorge Ribas/The Washington Post)

The team is thrilled with todays unanimous decision as it resolves the Redskins long-standing dispute with the government, Redskins attorney Lisa Blatt said in a statement. The Supreme Court vindicated the teams position that the First Amendment blocks the government from denying or cancelling a trademark registration based on the governments opinion.

Free speech advocates had supported The Slants, and the courts decision seemed likely from the oral arguments.

But some worried about what kinds of trademarks the government will now be forced to register. It seems this decision will indeed open the floodgates to applications for all sorts of potentially offensive and hateful marks, said Lisa Simpson, an intellectual property lawyer in New York. She added: While this may be the right result under the First Amendment and the principles of free speech that are foundational to our country, it seems the responsibility will now pass to the public.

The teams trademark registration was canceled in 2014 after decades of use. The team asked a district judge in Virginia to overturn the cancellation and was refused. The case is now in the U.S. Court of Appeals for the 4th Circuit in Richmond, pending the Supreme Courts decision in the Slants case.

Registration of a trademark provides a nationwide defense against others who would try to use it.

The case is Matal v. Tam.

Read more:
Supreme Court: Rejecting trademarks that 'disparage' others violates the First Amendment - Washington Post

Mondays decision indicates that Justice Anthony Kennedy, pictured above, is moving in the right direction on the issues at the heart of partisan gerrymandering.

Jonathan Ernst/Reuters

On Monday morning, the Supreme Court agreed to hear Gill v. Whitford, a blockbuster case that could curb partisan gerrymandering throughout the United States. Shortly thereafter, the justices handed down two excellent decisions bolstering the First Amendments free speech protections for sex offenders and derogatory trademarks. While the link between these two rulings and Whitford isnt obvious at first glance, it seems possible that both decisions could strengthen the gerrymandering plaintiffs central argumentand help to end extreme partisan redistricting for good.

Mark Joseph Stern is a writer for Slate. He covers the law and LGBTQ issues.

The first ruling, Matal v. Tam, involves a dance-rock band called the Slants that sought to trademark its name. Simon Tam, the founding member, chose the name precisely because of its offensive history, hoping to reclaim the term. (He and his fellow band members are Asian American.) But the Patent and Trademark Office refused to register the name, citing a federal law that bars the registration of trademarks that could disparage or bring into contemp[t] or disrepute any persons, living or dead, institutions, beliefs, or national symbols. (The same rule spurred the revocation of the Redskins trademark.)

Every justice agreed that the anti-disparagement law ran afoul of the First Amendment. They split, however, on the question of why, exactly, the rule violates the freedom of speech. Justice Samuel Alito, joined by Chief Justice John Roberts as well as Justices Clarence Thomas and Stephen Breyer, applied the somewhat lenient test for commercial speech, which requires that a law be narrowly drawn to further a substantial interest. The trademark rule, Alito wrote, is ridiculously broad: It could apply to such theoretical trademarks as Down with homophobes (disparaging beliefs) and James Buchanan was a disastrous president (disparaging a person, living or dead). The law, then, is not an anti-discrimination clause, Alito concluded. It is a happy-talk clause, one that is far too sweeping to survive constitutional scrutiny.

Justice Anthony Kennedy perceived even more insidious censorship at play. In a concurrence joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan, Kennedy wrote that the measure in question constitutes viewpoint discriminationan egregious form of speech suppression that is presumptively unconstitutional. Under the First Amendment, Kennedy explained, the government may not singl[e]out a subset of messages for disfavor based on the views expressed, even when the message is conveyed in the commercial context. The anti-disparagement rule does exactly that, punishing an individual who wishes to trademark a name that the government finds offensive. This is the essence of viewpoint discrimination, Kennedy declared, and it cannot comport with the First Amendment.

A similar rift opened up between the justices in the second free speech case of the day, Packingham v. North Carolinaanother unanimous ruling with split opinions. (Justice Neil Gorsuch did not participate in either case, as oral arguments came before he was confirmed.) Packingham involved a North Carolina law that prohibited registered sex offenders from accessing any social media website, including Facebook, LinkedIn, and Twitter. The language of the statute is so sweeping that it also barred access to websites with commenting features such as Amazon and even the Washington Post. In essence, the law excludes sex offenders from the internet. North Carolina has used it to prosecute more than 1,000 people.

Kennedy, joined by all four liberals, subjected the law to intermediate scrutiny, asking whether it burden[s] substantially more speech than is necessary to further the governments legitimate interests. He easily found that it did. The Cyber Age is a revolution of historic proportions, Kennedy wrote, and social media users engage in a wide array of protected First Amendment activity on topics as diverse as human thought. Our interactions on the internet alter how we think, express ourselves, and define who we want to be; to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights. The North Carolina law therefore suppresses too much expression and is thus in contravention of the Constitution.

In his ode to social media, Kennedy proclaimed that the internet has become the modern public square, the 21st-century equivalent to those public streets and parks where the Framers hoped Americans would speak and listen, and then, after reflection, speak and listen once more. (Kennedys prose remains distinctive as ever.) In a concurrence, Alito, joined by Roberts and Thomas, rejected Kennedys public square theory as loose, undisciplined, and unnecessary rhetoric that elides differences between cyberspace and the physical world. The three conservatives agreed that the North Carolina law swept too far but insisted that Kennedys opinion granted sex offenders a dangerous amount of freedom on the web.

So: What do these casesboth correctly decided, in my viewhave to do with gerrymandering?

To start, its important to view gerrymandering through a free speech lens, one developed by Kennedy himself in 2004. When the government draws districts designed to dilute votes cast on behalf of the minority party, it punishes voters on the basis of expression and association. To create an effective gerrymander, the state classifies individuals by their affiliation with political partiesa fundamental free speech activitythen diminishes their ability to elect their preferred representatives. Supporters of the minority party can still cast ballots. But because of their political views, their votes are essentially meaningless.

Districts designed to dilute votes for the minority party punish voters on the basis of expression and association.

Kennedy has called this a burden on representational rights. Its also something much simpler: viewpoint discrimination. In performing a partisan gerrymander, the government penalizes people who express support for a disfavored partymuch like, in Tam, the government penalizes those who wish to trademark a disfavored phrase. Both state actions punish individuals on the basis of their viewpoints: If you back the minority party, your vote wont matter; if you give your band an offensive name, you cant trademark it. And even though neither action qualifies as outright censorship, both restrict the public expression of ideas that the First Amendment is meant to protect.

Packingham also includes a subtler gift to the Whitford plaintiffs. In an aside, Kennedy compared the North Carolina law unfavorably to a Tennessee measure that bars campaigning within 100 feet of a polling place. Unlike the North Carolina law, Kennedy explained, the Tennessee statute was enacted to protect another fundamental rightthe right to vote.

Perhaps this passage is just more loose rhetoricbut I doubt it. Fundamental rights receive heightened protection under the Constitution. And although most Americans would probably agree that voting is a fundamental right, the Supreme Court has been cagey about saying so and inconsistent in safeguarding it. When the court upheld a voter ID law in 2008, for example, six justices paid lip service to the right to vote even as they shredded it; only the dissenting justices noted that the right is fundamental under the Constitution. Similarly, when the courts conservatives gutted the Voting Rights Act in 2013, they did not call the right to vote fundamental. Instead, they celebrated the fundamental principle of equal sovereignty, an archaic and discredited states rights doctrine. The upshot of that decision seemed to be that states rights are fundamental but voting rights are not.

Kennedy voted to uphold the voter ID law and kneecap the Voting Rights Act. But the justice is always evolving, and his aside in Packingham reads to me like a renewed commitment to the franchise set in the free speech context. If so, thats terrific news for opponents of partisan gerrymandering. Such gerrymandering limits an individuals fundamental right to vote (by making her vote useless) on the basis of her viewpoint (that is, her support for a political party). In effect, the practice attaches unconstitutional conditions to both voting rights and free speech, putting many voters in a quandary: They can either muffle their political viewpoints and cast meaningful ballots or express their political viewpoints and cast meaningless ballots. The Constitution does not permit states to punish individuals for exercising their rights in this manner.

Unfortunately, these tea leaves do not indicate inevitable doom for partisan gerrymandering. Kennedy recently indicated concern about judicial intervention into the redistricting process, and in the past he has questioned whether courts can accurately gauge which gerrymanders go too far. The Whitford challengers believe they have the right tool to measure partisan gerrymanders, a mathematical formula called the efficiency gap. Nobody yet knows if Kennedy will agree, and the justice has sent mixed signalsits worth noting that he joined the courts conservatives in voting to stay the lower court decision in Whitford while the justices consider the case. (The court had ordered Wisconsin to redraw its maps.)

Still, Mondays decision indicates that Kennedy and the court are, at the very least, moving in the right direction on the issues at the heart of partisan gerrymandering. Free expression and association arent really free if the government can punish you for your viewpoint by ensuring your ballot doesnt matter; the right to vote isnt fundamental if it can be diluted on the basis of political affiliation. The basic First Amendment principles Kennedy espoused on Monday explain why the court may well curtail partisan gerrymandering next term. In fact, they explain why the Constitution demands nothing less.

Read more:
Does Partisan Gerrymandering Violate the First Amendment? - Slate Magazine

Sex offenders are probably the most marginalized group in society (ahead only of cannibals?) so it must be the rare case indeed where the Supreme Court rules unanimously in their favor. No, this isn't a situation where some state decreed that anyone accused of a sex crime be chemically castrated without trial or any other kind of Eighth Amendment (cruel and unusual punishment) or due-process claim. Instead, a man who served his time and was released subject to the normal set of registration and living restrictions was sent back to prison because he accessed Facebook. Monday, all eight justices (Neil Gorsuch not having participated) held that this violated the First Amendment.

Let's dive into the bizarre facts of the case. Lester Packingham, who had served time for "taking liberties with a minor" when he was 21 and she was 13, beat a parking ticket and celebrated by proclaiming on his Facebook page that "God is good! . . . Praise be to GOD, WOW! Thanks JESUS!"

For this grave offense against humanity, he was returned to the big house under a North Carolina statute that bans such people from accessing a wide variety of websites.

The law is meant to prevent communications between sex offenders and minors, but it sweeps more broadly than any other such law in the country. It doesn't even require the state to prove that the accused had contact with (or gathered information about) a minor, or intended to do so, or accessed a website for any other illicit purpose.

Accordingly, the state court of appeals overturned Packingham's conviction, but the state supreme court, over vigorous dissent, reinstated the conviction and sentence. The U.S. Supreme Court has now had the final word, finding that the North Carolina law wasn't "narrowly tailored to serve a significant governmental interest."

Translating from the legalese, this means that the state legislature slapped down a broad law that didn't closely track the social problem it was supposed to target. As the Supreme Court explained, citing Cato's amicus brief, the law may well bar access not only to social media but to any site where someone creates a profile and interacts with peopleincluding the likes of Amazon, YouTube, and WebMD, or even the Washington Post and New York Times.

But even restrictions on social media alone would be troubling if not further tailored, the Supreme Court announced. Indeed, Justice Anthony Kennedy's opinion is an encomium to the importance of web-surfing: "By prohibiting sex offenders from using those websites, North Carolina with one broad stroke bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge." (The next time my wife tells me that I'm spending too much time on Facebook and Twitter, I'll reply that I'm simply enriching myself with the wealth of human knowledge.)

There are other problems with the statute, such as its vagueness. Someone subject to this law literally can't know what he can't do or say; the police themselves aren't sure!

Finally, the statute also fails constitutional scrutiny because it criminalizes speech based on the identity of the speaker. As Kennedy put it, "[e]ven convicted criminalsand in some instances especially convicted criminalsmight receive legitimate benefits from these means for access to the world of ideas, in particular if they seek to reform and to pursue lawful and rewarding lives."

The very purpose of the First Amendment is to protect the speech of disfavored minorities. Signaling out this speech for prosecutionwithout any allegation that it relates to conduct or even motivehas earned the Tar Heel State a big "dislike" from the Supreme Court.

Ilya Shapiro (@ishapiro) is a contributor to the Washington Examiner's Beltway Confidential blog. He is a senior fellow in constitutional studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review.

If you would like to write an op-ed for the Washington Examiner, please read ourguidelines on submissions here.

Here is the original post:
Even sex offenders have First Amendment rights - Washington Examiner

The law at issue in both cases denies federal trademark protection to messages that may disparage people, living or dead, along with institutions, beliefs or national symbols.

Four justices said the law could not withstand even the fairly relaxed judicial scrutiny that the Supreme Court applies to commercial speech. Those justices rejected the two government interests that the law was said to advance: protecting disadvantaged groups from demeaning messages and the orderly flow of commerce.

The First Amendment protects offensive speech, Justice Samuel A. Alito Jr. wrote for this group of four justices. Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express the thought that we hate, he wrote, quoting a classic 1929 dissent from Justice Oliver Wendell Holmes Jr.

Justice Alito added that the laws disparagement clause was far too broad. It is not an anti-discrimination clause; it is a happy-talk clause, he wrote.

Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Stephen G. Breyer joined that part of Justice Alitos opinion.

Four other justices would have struck down the law using the more searching First Amendment scrutiny that applies to viewpoint discrimination.

The danger of viewpoint discrimination, Justice Anthony M. Kennedy wrote, is that the government is attempting to remove certain ideas or perspectives from a broader debate. That danger is all the greater if the ideas or perspectives are ones a particular audience might think offensive, at least at first hearing.

To permit viewpoint discrimination in this context is to permit Government censorship, Justice Kennedy wrote.

Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan joined Justice Kennedys opinion.

Justice Neil M. Gorsuch did not participate in the case, which was argued in January, before he joined the court.

The competing opinions from the two four-justice blocs will mute the extent to which the decision sets precedent in other contexts.

All eight participating justices did agree on some points. They were unanimous in rejecting the argument that federal trademarks are the governments own speech and thus immune from First Amendment scrutiny of any kind.

In 2015, in a 5-to-4 decision in Walker v. Sons of Confederate Veterans, the Supreme Court ruled that Texas could refuse to allow specialty license plates bearing the Confederate battle flag because the plates were the governments speech.

Justice Alito, writing for eight justices on Monday, said trademarks are different.

If the federal registration of a trademark makes the mark government speech, the federal government is babbling prodigiously and incoherently, he wrote. It is saying many unseemly things. It is expressing contradictory views. It is unashamedly endorsing a vast array of commercial products and services. And it is providing Delphic advice to the consuming public.

The Slants said they did not intend to disparage anyone. Instead, they said, they sought to adopt and reform a disparaging term about Asians, much as some gay people have embraced the term queer.

That was significant, Justice Kennedy wrote. The band wanted, he wrote, to supplant a racial epithet, using new insights, musical talents, and wry humor to make it a badge of pride.

The government has applied the law inconsistently when faced with trademarks based on ethnic slurs. It has, for instance, both registered and rejected trademarks for the terms Heeb, Dago, Injun and Squaw.

In the Redskins case, the trademark office registered the teams trademarks in 1967, 1974, 1978 and 1990. In 2014, though, it reversed course and canceled six registrations, saying they disparaged Native Americans.

The team lost before a trial judge in Virginia and appealed to the United States Court of Appeals for the Fourth Circuit, also in Virginia. The appeals court put the case aside while the Supreme Court considered the Slants case, Matal v. Tam, No. 15-1293.

In a second First Amendment case decided Monday, the Supreme Court unanimously struck down a North Carolina law that made it a crime for registered sex offenders to use Facebook and many other websites.

The law was challenged by Lester Packingham, a registered sex offender who was convicted of violating it after posting an account of having a traffic ticket dismissed. God is good, he wrote on Facebook.

Mr. Packingham, who had pleaded guilty in 2002 to taking indecent liberties with a minor when he was a 21-year-old student, said the law violated the First Amendment.

Justice Kennedy, writing for a five-justice majority, said the internet is transforming American life and has turned into the modern public square. Denying access to it, he wrote, violates the First Amendment.

The statute here enacts a prohibition unprecedented in the scope of First Amendment speech it burdens, Justice Kennedy wrote. Social media allows users to gain access to information and communicate with one another about it on any subject that might come to mind.

By prohibiting sex offenders from using those websites, North Carolina with one broad stroke bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge, he wrote.

Justices Ginsburg, Breyer, Sotomayor and Kagan joined Justice Kennedys opinion. Justice Gorsuch did not participate in the case.

In a concurrence, Justice Alito, joined by Chief Justice Roberts and Justice Thomas, agreed with the result in the case but did not join what he called the loose rhetoric in Justice Kennedys opinion.

The North Carolina law was too broad, Justice Alito wrote, but states retain many legal tools to protect children on the internet.

Read the original:
Justices Strike Down Law Banning Disparaging Trademarks - New York Times

Im delighted to report that the Utah Supreme Court has just handed down an opinion in Butt v. State, reversing an obscenity-as-to-minors conviction that Utah lawyers Troy Booher and Beth Kennedy (many thanks to them!) and I challenged.

The Utah Supreme Court had upheld the conviction when it was first appealed, and I challenged that in a petition for review to the U.S. Supreme Court. But the state argued that the First Amendment arguments werent properly made at trial and on initial appeal; and, after calling for a copy of the record, the U.S. Supreme Court denied our petition. We then filed a state post-conviction challenge, arguing that, if the First Amendment argument was indeed not properly made, that was ineffective assistance of counsel.

And today, the Utah Supreme Court agreed, holding that the material in the case was actually protected by the First Amendment. (In this case, the ineffective assistance of counsel issue ended up turning on this substantive First Amendment question.) First, the facts (you can see more details in our cert. petition):

Petitioner was convicted of two counts of dealing harmful materials to a minor. The counts relate to two letters Petitioner sent to his family from jail while awaiting sentencing for theft. While processing Petitioners first letter for mailing, a jail guard noticed a drawing that concerned him. And he held the letter for review by his jail commander.

The letter included handwritten notes to Petitioners wife and five-year-old daughter. Petitioner wrote to his daughter: Well I know you want me to draw my whole body, but I cant draw very good, so this will have to work. The drawing was an unskilled, hand drawn picture portraying Petitioner naked. While the drawing was rough, it depicted Petitioners nipples, chest hair, pubic hair, penis, and testicles.

Three days later, without knowledge that his first letter had been intercepted, Petitioner wrote a second letter. This letter was also intercepted. In this letter, Petitioner again wrote a short note to his daughter: Hi beautiful girl. I miss you so much. I cant wait to bite your butt cheek. This is what it will look like. I love you.

Below this note, Petitioner had again roughly sketched a picture of himself naked. This picture was even more rudimentary than the initial drawing. But it portrayed Petitioners nipples, penis, and testicles. This time, however, he was holding his daughter up with her bottom next to his mouth. A speech bubble from his mouth read: Oh your butt taste [sic] so good. And a second speech bubble from his daughters mouth read: Oouch! Daddy dont Bite so hard Giggle giggle.

At trial, Petitioner attempted to justify the contents of the first drawing. He testified that prior to his incarceration he had watched a documentary about cave dwellings with his daughter, with cave drawings depicting naked people. Petitioner testified that his daughter had laughed and asked him to draw a picture of himself naked like the cave drawings.

With respect to the second drawing, Petitioner testified that his daughter likes being tickled. So as part of her bedtime routine he holds his daughters hands up in the air and nibbles all over her stomach, while she laughs. To escape the tickling, his daughter rolls over from her back to her stomach. At this point, Petitioner teases her, saying roll back over or Im going to bite your butt cheek, to which his daughter responds by rolling back over. Petitioner testified that he does not remember ever actually biting his daughter during the routine. Rather, he makes an empty threat so that his daughter will roll back over. Despite Petitioners explanation, the jury returned a guilty verdict on both counts.

When we challenged the convictions in state court, the state agreed that the conviction related to the first drawing should be vacated; and it conceded that trial counsels performance was deficient in failing to raise an independent First Amendment defense, but argued that the defendant hadnt been harmed by this error as to the second drawing because the First Amendment defense would have in any event failed. Today, the court held that the First Amendment did protect the second drawing, because it did not appeal to a prurient interest in sex, and thus did not fall within the First Amendment exception for speech that is obscene as to minors:

[T]he drawing at issue is so rudimentary that taken as a whole including the context of Petitioners unrebutted testimony about his routine with his daughter it does not depict a sexual act. And we likewise conclude that the drawing is not sexually suggestive.

An appeal to the prurient interest in sex of a five-year-old is not a particularly high bar. A prurient interest in sex is one that is a shameful or morbid. And in the context of obscenity as to minors, this assessment is judged in light of the minors age. While a five-year-old likely does not experience sexual arousal, material can still generate a desire to engage in sexual relations. Whether that desire stems from curiosity, conditioning, or otherwise, it may cross the prurient interest line.

Perhaps it could be said that a five-year-olds present desire to engage in any form of sexual activity is prurient. At a minimum, however, it can be said that this standard is met with respect to material that is aimed at appealing to a young childs interest in engaging in sexual activity with a parent (or any adult); such activity is criminal, and thus easily deemed shameful or morbid.

If we viewed the drawing as depicting sexual conduct between Petitioner and his daughter we would have little difficulty agreeing with the State [that the drawing appealed to a prurient interest in sex]. But on balance, and in light of the context given to the drawing by the only testimony on the matter presented at trial, we view the drawing differently. We do not view the drawing as portraying a sexual act.

Although the drawing clearly depicts Petitioner naked, it is unclear whether it shows him biting his daughter or simply holding her in the air and joking about doing so. It is equally unclear whether his daughter is clothed or naked. Importantly, moreover, there is no context in the record to support the States inferences that sexual conduct is in fact being portrayed.

We likewise conclude that the intended audience, Petitioners daughter, would not have perceived the drawings as sexually suggestive. Context is particularly important in this area. And the only contextual evidence in the record is Petitioners own testimony regarding the cave drawing television program and his bedtime routine with his daughter. We have little way of knowing whether Petitioners testimony was truthful. Perhaps the State is right to be skeptical about the explanation offered by Petitioner. But the problem is that we have no contrary evidence before us no indication on the record to give a different context to the drawing, and no basis for the conclusion that Petitioners explanation was fabricated. We give little weight to Petitioners story. But we do give it some weight, which together with his daughters young age leads us to conclude that Petitioners daughter would not have seen the drawing as sexually suggestive.

We conclude that the drawing is not sexual or sexually suggestive, and accordingly does not appeal to a prurient interest in sex. [Footnote: We caution that this is a close case. We conclude that on the record before us, Petitioners drawing was so rudimentary that taken as a whole it would not have appealed to any sexual interest of Petitioners daughter. But context matters. And a contrary decision might be merited in a case involving additional facts evidencing double entendre, an older child more perceptive of sexual suggestion, a context where the intended recipient might perceive a sexual meaning, or a more explicit drawing.]

One important procedural takeaway: The same Utah Supreme Court unanimously upheld the conviction initially, and then unanimously reversed it on appeal, even though three of the five Justices on the court heard both cases.

The difference, I think, is that, in 2012, the court deferred to the jurys application of the obscenity-as-to-minors test, presumably because the court saw this as simply a state-law case rather than a First Amendment case. But now, when it applied the First Amendment analysis, it had to apply independent review of the record to judge the merits of a First Amendment defense in an obscenity action, yielding no deference to the jurys verdict or the district courts conclusions on underlying mixed questions of law and fact. (Such independent review is required by the U.S. Supreme Courts First Amendment caselaw.)

So, law students and lawyers: Remember how important such standards of review can be, and remember the procedural value of raising a substantive First Amendment defense in cases involving speech crimes or speech torts.

Thanks again to Troy Booher and Beth Kennedy for all their help with the case, and to John Hurst, Freyja Johnson, Clemens Landau and Michael Teter and my colleagues Iman Anabtawi, Jason Oh and Seana Shiffrin for sitting on my moot courts for the oral argument.

The rest is here:
Utah Supreme Court reverses obscenity-as-to-minors conviction - Washington Post

Analysis Law and Policy

Jun 19, 2017, 12:18pm Lisa Needham

One of the best ways to ensure people don't exercise their First Amendment rights is to make it far too hazardous and costly to do so. That is what is happening right now.

We live in an era of increasing crackdowns on public protests and whistleblowing: real, and increasingly effective, attacks on the First Amendment. The First Amendment, of course, promises us the right to free speech, but it also promises us the rights to assemble and to associate. In practical terms, this generally means that you can associate with whomever you choose to, assemble together in any fashion, and speak out against the government in whatever way you see fit.

One of the best ways to ensure people dont exercise their First Amendment rights is to make it far too dangerous and costly to do so. That is what is happening right now.

Attempts to brutalize protesters and criminalize protest are nothing new. The 2008 Republican National Convention (RNC), for example, saw police firing chemical agents and projectiles at peaceful crowds and mass arrests. The overcharging of arrestees that followed the convention only added to the feeling of dystopia. Prior to even engaging in any protests, eight individuals were arrested and eventually charged under an anti-terrorism statute. Why? Because they had some banal items like light bulbs, which police alleged could be filled with paint or chemicals and thrown, along with more obviously problematic things like U-locks (to chain themselves to things) and caltrops (steel points you put on the street to deflate tires). But the key point: They hadnt done a thing with those objects yet, so the anti-terrorism charge was more than a bit of a stretch. (Terrorism charges are more typically leveled when people are found with bomb-making material, or are found with innocuous material but have detailed how they plan to use that material to make an explosive.) Those charges were later dropped because the prosecutor felt that it would distract the jury.

As grim as the RNC charges were, theyve got nothing on the latest episode of overcharging protesters. More than 200 people were arrested for protesting during President Trumps inauguration in January. Most protesters were originally charged with only one count of felony rioting but, after very few of them pleaded guilty, a new grand jury indictment was returned that charges nearly all of them with eight felony counts, including inciting to riot, conspiracy to riot, and destruction of property.

Rewire is a non-profit independent media publication. Your tax-deductible contribution helps support our research, reporting, and analysis.

DONATE NOW

Make no mistake: Many of these individuals were first punished for exercising their right to protest, and are now being punished for exercising their right to demand a trial rather than a plea deal. The government is also attempting totry all the defendants together, which brings up serious questions of fairness.

As reported by BuzzFeed, Jason Flores-Williams, an attorney representing three of those defendants, has already asked District of Columbia Superior Court Judge Lynn Leibovitz, who is presiding over all of the Inauguration Day prosecutions, to require a separate trial for one his clients, rather than agree to the governments plan to try defendants together.

There is a spillover prejudicial effect where when evidence against one person as I said ends up in the jurys mind being evidence against everyone else who was there, regardless of whether that evidence was actually against them or proven against them in any direct or specific way, Flores-Williams toldBuzzFeed.

The Inauguration Day protesters face felony charges that carry up to ten years in prison. Thats far too high a price to pay.

Equally chilling, six journalists were also arrested during the inauguration and charged with felony rioting. (Charges have since been dropped for all but one of the journalists).

Another way to ensure that people arent able to speak truth to power is to restrict them from documenting abuses of that power. States keep trying to pass laws that criminalize the filming or photographing of police. Indeed, whether you can record police or not is still an open question for the courts. A divided U.S. Court of Appeals for the Fifth Circuitrecently ruled on the case of a Texas activist who was filming police activity outside a police station. The court held that individuals have a First Amendment right to film the police within the states of the Fifth Circuit: Louisiana, Mississippi, and Texas. The Fifth Circuit also noted that every circuit court that has ruled on the issue has found that the First Amendment does actually protect the right of people to film police officers while those officers are performing their duties. However, several circuits havent ruled on the matter, or have stated that the right isnt clearly established. Regardless of court rulings, police continue to push back: Just in the last year, the ACLU has had to go to court in Louisiana, Massachusetts, and Pennsylvania to defend the right of individuals to record the police. Being able to record the police and share those recordings is, of course, a key component of journalism in the modern digital and visual era.

Clamping down on whistleblowers and leakers is another way to ensure that people dont speak out. If the price of speaking out is too high, people will stop. The Obama administration aggressively prosecuted leakers at a much higher rate than during the administrations of his predecessors, even going so far as to oppose allowing leakers to mount a defense based on the First Amendment. In other words, the prosecutors filed motions to prohibit defendants from saying that they were performing a public service by leaking to the press. However, the defense should be allowed because the public has a First Amendment interest in knowing about the workings of government, and government employees are in the best position to share that information.

The Trump administration looks to be equally aggressive, if not more so, having undertaken its first leak prosecution by going after Reality Winner, who allegedly leaked information about Russian interference in the 2016 election. To be sure, what Winner allegedly leaked is information that the public absolutely does need to know about: the depth and breadth and persistence of Russian attempts to hack the 2016 U.S. election. However, she now faces a fine of up to $250,000, a prison sentence of up to 10 years, or both.

Trump has stated hed consider jailing journalists over leaks, while people like former Speaker of the House Newt Gingrich (R), and others,have stated that federal employeeleakers who talk to the press are committing treason. They arent, of course. In the United States, treason generally refers to U.S. citizens who use force to align with enemies of the country. Attorney General Jeff Sessions, of course, wants to actively pursue and prosecute leakers rather than address his own peculiar failure to remember when he talks to Russians.

At the same time as the threat of leak prosecutions looms, congressional Republicans are looking to lock down press access to their members, in large part because they dont want to talk about the nightmare that is their health care bill. Journalists were told they couldnt film interviews with senators without getting permission from the (Republican-led) Senate Rules Committee. Tim Scott (R-SC) bizarrely claimed that if journalists could roam the halls and talk to senatorssomething they have always been able to dothe cameras might capture his ATM PIN and he needed to keep that private. This effort, mercifully, failed relatively quickly, but theres no reason to think that congressional Republicans who have been dodging things like town halls left and right wouldnt welcome greater press restrictions.

Criminalize protest, veil the work of police, prosecute those who share vital information with the American people, and limit availability and accountability of elected officials. These are pages from an authoritarian playbook, not a democratic one, but it is the world we live in now. We need to be vigilant against further depredations where the right to speech is concerned by supporting protesters and whistleblowers in any way we can.

Follow this link:
The First Amendment Is in Increasing Danger Under a Trump Administration - Rewire