Monthly Archives: August 2017

Enlarge / Issue ads like this one from 2012 used to be commonplace in the DC metro.

The American Civil Liberties Union on Wednesday sued the Washington Metropolitan Area Transit Authority, the government agency thatoperates the capital region's subway system and its primary bus network. The ACLU argues that the transit agency's policies for accepting advertisements on its subway stations, trains, and buses violate the First Amendment by discriminating against controversial and non-mainstream viewpoints.

The plaintiffs in the lawsuit are ideologically diverse: the ACLU itself, an abortion provider, People for the Ethical Treatment of Animals, and alt-right-Internet-troll-to-the-point-Twitter-actually-banned-him Milo Yiannopoulos.

The inclusion of an alt-right figure like Yiannopoulos helps to demonstrate the ACLU's point that WMATA's policy squelches free-speech rights across the political spectrum. But Yiannopoulos' inclusionhas also raised the hackles of some on the political left, who see associating with the controversial authoras beyond the pale. Chase Strangio, an ACLU attorney who has represented whistleblower Chelsea Manning, posted a statement calling Yiannopoulos "vile" and attacking the ACLU for defending his First Amendment rights.

But the ACLU has a long history of defending the First Amendment rights of groups far outside the mainstream, including Nazis and the Ku Klux Klan.As such, the organizationhasn't backed down from its defense of Yiannopoulos. "Protecting the First Amendment rights of all of these speakers is crucial to the ability of civil rights movements to make the change we need to make," the group argued in a Wednesday blog post.

The controversy began in 2015, when anti-Muslim activist Pam Geller tried to place ads depicting a cartoon of the prophet Muhammad on DC subways. That put WMATA in a difficult position, because some Muslim extremists have threatened violence against anyone who publishes Muhammad cartoons.

In an apparent effort to duck the controversy, WMATA announced that it was suspending "issue oriented" advertising across the board.

Of course, the big problem here is that it's not so clear what counts as an "issue oriented" ad. For example, military contractors have long taken out lavish ads touting their latest fighter planes. Arethey merely advertising commercial products or are they trying to influencepolicy decisions about what hardware to buy?

The ACLU believes that the "no issue ads" standard is unworkable and unconstitutional, and it assembled a group of plaintiffs to illustrate the point:

A couple of things are obvious from this list. First, while Yiannopoulos'participation in the lawsuit has gotten the most attention, the ACLU isn't only defending the rights of right-wing provocateurs like Yiannopoulos and Geller. Groups defending left-wing causes like animal rights and abortion rights have also been affected.

Second, while WMATA might have thought "issue ads" were a clear and value-neutral category, in practice it has turned out to be unworkably vague. Rules that allow companies to hawk fighter jets and hamburgers, but ban anti-war and animal rights groups from advertising, is the opposite of viewpoint-neutral. The WMATA's guidelines give the agency unfettered discretion to decide which positions are too controversial to appear in ads, and that seems hard to square with the First Amendment.

The ACLU is generally viewed as a liberal group, but itsabsolutist stance on the First Amendment doesn't fit well with everyone on the political left. A growing contingent of left-wing thinkers have come to see "hate speech" as a serious problem and free speech absolutism as an obstacle to addressing it.

Controversy has become more common over the last eightmonths as the ACLU has attracted a wave of new supporters alarmed by the Trump presidency. Many people donated to the ACLU in the expectation that the group would oppose Trump administration policiesand the group has done plenty of that. But not all of the ACLU's new donors understood the depths of the ACLU's commitment to free speech rights.

"Especially for many of our new members, they may be surprised by the ACLU's robust First Amendment positions," ACLU staff attorney Lee Rowland said in February. "But it's certainly not new."

Over time, defending the free speech rights of right-wing extremists has become something of a trademark for the group. For example, in 2012 the ACLU sued the state of Georgia defending the right of the KKK to "adopt a highway" in the state. In 2010, the group defended the free speech rights of Fred Phelps, the infamous pastor who pickets the funerals of LGBTsoldiers with anti-gay messages.

The ACLU has been doing this kind of thing for almost 100 years now, and it's not likely to stop any time soon. Individualswho don't want their donations supporting the rights of people who engage in "hate speech" mightbe wise toresearch organizations ahead of time.

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DC's transit agency rejected ads touting the First Amendment (really) - Ars Technica

The ACLU and three other plaintiffs have filed a lawsuit against the Washington Metropolitan Area Transit Authority, alleging its advertising guidelines are unconstitutional. Pablo Martinez Monsivais/AP hide caption

The ACLU and three other plaintiffs have filed a lawsuit against the Washington Metropolitan Area Transit Authority, alleging its advertising guidelines are unconstitutional.

The four plaintiffs in a lawsuit against the Washington Metropolitan Area Transit Authority are from across the political spectrum: the American Civil Liberties Union, a health care group called Carafem that provides abortions, People for the Ethical Treatment of Animals and conservative provocateur Milo Yiannopoulos.

What they have in common is that the transit agency known as WMATA has rejected their advertisements, saying the ads ran counter to its guidelines. They have now banded together, saying the guidelines introduced in 2015 violate their First Amendment right to free speech.

In fact, the ACLU's rejected advertisement displays the text of the First Amendment in English, Arabic and Spanish, with the ACLU's logo and the slogan "We the People."

The ACLU says WMATA has violated its right to free speech by rejecting an advertisement showing the text of the First Amendment in three languages. ACLU hide caption

WMATA did not explain in writing why it rejected the ACLU's ad, according to the complaint. Outfront Media, which manages the system's advertising, initially told the ACLU that it was rejected because it "does not take any issue oriented advertising." Outfront later stated that "you'll need to dramatically change your creative in order to resubmit," the complaint says.

"In its zeal to avoid hosting offensive and hateful speech, the government has eliminated speech that makes us think, including the text of the First Amendment itself," said ACLU senior staff attorney Lee Rowland. "The ACLU could not more strongly disagree with the values that Milo Yiannopoulos espouses, but we can't allow the government to pick and choose which viewpoints are acceptable."

The D.C. metro system changed its advertising policy in 2015. According to the ACLU, it happened "following controversy surrounding a set of anti-Muslim advertisement." The ACLU, Carafem and PETA had previously advertised with Metro.

The guidelines on commercial advertising, which are published on WMATA's website, say medical messages are allowed "only from government health organizations, or if the substance of the message is currently accepted by the American Medical Associated and/or the Food and Drug Administration."

It also blocks ads "intended to influence members of the public regarding an issue on which there are varying opinions," those "that support or oppose an industry position or industry goal without any commercial benefit to the advertiser" and those "that are intended to influence public policy."

In a statement about the lawsuit to NPR, WMATA pointed to its change in policy and said it "intends to vigorously defend its commercial advertising guidelines, which are reasonable and viewpoint neutral."

The lawsuit says WMATA rejected advertisements from PETA (counterclockwise from top), Carafem, Milo Yiannoloulos and the ACLU. ACLU hide caption

The Carafem advertisement says it sells the FDA-approved mifeprex/misoprostol regimen used to end pregnancy at up to 10 weeks. The "10-week-after pill," it reads, "for abortion up to 10 weeks."

WMATA rejected multiple PETA ads, including one saying "I'm ME, not MEAT. See the Individual. Go Vegan," next to a photo of a pig. The plaintiffs argue that "WMATA has accepted and displayed many advertisements that are intended to influence riders to buy, do and believe things that are at odds with PETA's viewpoint on humans' proper relationship with animals."

WMATA initially accepted advertisements for a book by conservative commentator Milo Yiannopoulos but took them down after receiving complaints, saying they violate the guidelines, according to the complaint.

The lawsuit claims that WMATA's rejection of the ads from the ACLU, Carafem and Milo Yiannopoulos was not because the ads themselves violated the guidelines. Instead, it says the ads were rejected for reasons outside of their content "such as the identity of the advertiser, the advertiser's known or presumed viewpoints, or the advertiser's line of business."

Continue reading here:
ACLU Sues DC Metro After It Rejects Ad With Text Of 1st Amendment - NPR

Daniel P. Tokaji is the Charles W. Ebersold and Florence Whitcomb Ebersold Professor of Constitutional Law at The Ohio State University Moritz College of Law.

A constitutional standard for partisan gerrymandering is the holy grail of election law. For decades, scholars and jurists have struggled to find a manageable standard for claims of excessive partisanship in drawing district lines. Most of these efforts have focused on the equal protection clause. But as Justice Anthony Kennedy suggested in Vieth v. Jubelirer, the First Amendment provides a firmer doctrinal basis for challenging partisan gerrymandering. An established line of precedent understands voting as a form of expressive association protected by the First Amendment. These cases offer a nuanced standard that would avoid the undesirable result of rendering any consideration of partisan consequences unconstitutional.

The right of expressive association

There is an obvious difficulty in relying on the First Amendment in partisan-gerrymandering cases: The Supreme Court has never considered voting a form of protected speech. It has, however, long recognized that voting is a form of protected association, at least in certain contexts. Before getting to those cases, its helpful to examine the roots of the right of expressive association.

The original associational-rights cases involved groups like the NAACP and the Communist Party that were extremely unpopular one might even say persecuted in many parts of the country. In NAACP v. Alabama ex rel. Patterson, for example, the Supreme Court invalidated a requirement that the NAACP disclose its membership list. Justice John Marshall Harlan IIs opinion for the court remarked that the freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the liberty assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech. In other words, expressive association is a necessary corollary of free speech.

The right of expressive association is closely linked to the First Amendments prohibition on content and viewpoint discrimination. As Justice Antonin Scalia put it in one of his last dissenting opinions, the First Amendment is a kind of Equal Protection Clause for ideas. It prohibits the government from abusing its authority to suppress disfavored points of view. Most importantly, it restricts the dominant political groups authority to diminish the voices of those who might challenge their grip on power.

Thus, in the first generation of association cases, disfavored groups like the NAACP and the Communist Party relied on the First Amendment to prohibit the government from taking adverse action against them and their members. These cases rest partly on the individual liberty interest identified in NAACP v. Alabama. But theyre also grounded in a larger vision of how democracy should function.

A leading example is the line of patronage cases that began with Elrod v. Burns, in which the Supreme Court struck down the practice of firing public employees who werent members of the Democratic Party, which controlled Cook County, Illinois. After describing the harm to individual employees, the plurality turned to systemic concerns arising from this practice: It is not only belief and association which are restricted where political patronage is the practice, wrote Justice William Brennan. The free functioning of the electoral process also suffers. Discrimination against non-party members tended to starve political opposition, thus tip[ping] the electoral process in favor of the incumbent party. In other words, party-based discrimination distorts the political process, entrenching the dominant party in power while subordinating its chief rival.

Voting as association

Partisan gerrymandering effects a comparable systemic harm, albeit through a different mechanism. By manipulating district lines, the dominant party can entrench itself in power even when the political winds shift. The increasingly sophisticated technology that line-drawers have at their disposal exacerbates the problem. It allows the dominant party to capture a large percentage of seats while ensuring that its majority will hold in both bad times and good.

Thats true not only in Wisconsin, from which Gill v. Whitford emerges, but in other states that would be competitive but for gerrymandering. Take my own state of Ohio. Although Ohio is a consummate purple state in presidential elections, Republican mapmakers drew lines there in 2011 that give their party a supermajority of districts three-quarters of the states congressional delegation and roughly two-thirds of its state legislative districts. These districts were drawn with the goal of creating a firewall that would ensure Republican control even in a strong Democratic year. And theyve been a spectacular success, ensuring Republican control of the Ohio state legislature throughout the current decade. Because they diminish the power of the non-dominant party in a manner thats both substantial and enduring, excessive partisan gerrymanders violate the right of expressive association.

Still, one might argue that compelled disclosure and patronage are very different from redistricting. In the original association cases, particular individuals were harmed discouraged from or punished for affiliating with disfavored groups. Moreover, those cases dont directly involve voting. Its a leap, one might argue, to hold that the right of association is implicated when voters, candidates and parties associate through the electoral process.

As it turns out, the Supreme Court made this leap long ago. For almost a half-century, the court has recognized that voting is a form of association protected by the First Amendment. The first voting-as-association case was Williams v. Rhodes, which challenged Ohios ballot-access requirements for new political parties like George Wallaces American Independent Party. Justice Hugo Blacks opinion for the court relied on both the First Amendment right of association and equal protection to strike down this requirement. Ohios onerous rules for adding new parties to the ballot gave the two old, established parties a decided advantage plac[ing] substantially unequal burdens on both the right to vote and the right to associate. In Williams, the Supreme Court thus stressed the risk of dominant parties using voting rules to entrench themselves in power, thereby harming non-dominant parties and their supporters.

Several years later, in Anderson v. Celebrezze, the Supreme Court again relied on the right of association to invalidate another ballot-access rule in Ohio, this time one that would have kept John Anderson from running as an independent presidential candidate in 1980. Justice John Paul Stevens opinion for the majority recognized that theres no litmus-paper test to separate valid and invalid restrictions on voting and association. Rather, the court should weigh the character and magnitude of the burden on voting and association against the states asserted interests. Although reasonable, nondiscriminatory restrictions can usually be justified by important regulatory interests, a stronger justification is required for more serious burdens, including ones that discriminate against outsider candidates and their supporters.

A subsequent case involving write-in voting in Hawaii, Burdick v. Takushi, reaffirmed Andersons flexible standard while clarifying that strict scrutiny applies only if the burden on voting and association is severe. Other cases like Tashjian v. Republican Party of Connecticut and Washington State Grange v. Washington Republican Party apply this standard to electoral rules that burden the associational rights of major parties and their adherents. The Anderson-Burdick balancing test is now used in constitutional challenges to a wide variety of election laws, including ballot access, blanket primaries and even voter ID. Whats not commonly recognized is that this legal standard originated in voting-as-association cases.

Applying the voting-as-association standard

Its true that the Supreme Court hasnt yet applied the Anderson-Burdick standard to partisan gerrymandering. In fact, the court has been maddeningly unclear about what legal standard should apply in these cases. But for several reasons, the standard emerging from the voting-as-association cases provides the best fit for evaluating partisan gerrymandering claims.

The first is that the First Amendment right of association best captures the type of injury alleged, specifically the lasting harm to non-dominant political parties and their adherents arising from the dominant partys self-entrenchment. Expressive-association cases have long focused on such harms, not only to the non-dominant party but to our political system. By contrast, equal protection law doesnt accord any special status to political party affiliation. Unlike race or sex, party affiliation isnt a protected class under the equal protection clause.

The second advantage of relying on the established voting-as-association standard is that it focuses on effects rather than intent. Recall that the Anderson-Burdick standard requires courts to weigh the character and magnitude of the burden on voting and association against the states asserted interests. An intent to harm the non-dominant party may be relevant, but it isnt required. Thats a good thing, because intent is notoriously hard to prove or disprove, especially in redistricting cases. The Shaw v. Reno line of racial-gerrymandering cases exemplifies this difficulty. Under those cases, the pivotal question is whether race was the predominant factor in drawing a particular district. Twenty-four years after Shaw, the Supreme Court is still struggling to explain what this means. An effect-based test is preferable. Though Anderson-Burdick is hardly a bright-line rule, its balancing standard has proven manageable in other voting contexts and can be adapted to partisan-gerrymandering claims.

This brings me to a third advantage of relying on the voting-as-association cases to assess partisan gerrymandering claims: It provides a nuanced legal standard. The Anderson-Burdick balancing approach would allow lower courts to sort through the evidence, striking down the most egregious and unjustified partisan gerrymanders without categorically prohibiting any consideration of party affiliation when drawing districts. Of course, partisan-gerrymandering claims demand hard judgments. There are no bright lines here. But the legal standard that the Supreme Court has long used in voting-as-association cases provides the best fit for partisan-gerrymandering cases like Gill v. Whitford.

Posted in Gill v. Whitford, Summer symposium on Gill v. Whitford, Featured, Merits Cases

Recommended Citation: Daniel Tokaji, Symposium: A path through the thicket the First Amendment right of association, SCOTUSblog (Aug. 10, 2017, 2:12 PM), http://www.scotusblog.com/2017/08/symposium-path-thicket-first-amendment-right-association/

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Symposium: A path through the thicket the First Amendment right of association - SCOTUSblog (blog)

Hours after he tweeted out Sieg Heil! during a Twitter fight with Media Matters president Angelo Carusone, political commentator Jeffrey Lord found himself fired by CNN. Commenting on the network severing ties with the pro-Trump pundit, a CNN spokesperson stated that Nazi salutes are indefensible.

Following CNNs announcement of his termination, Lord spoke with the Associated Press. While he expressed his affection and love for CNN, noting that theyre terrific people and serious people, he said he felt the outlet was doing a disservice to free speech.

He called himself a First Amendment fundamentalist and called CNNs decision disappointing. From my perspective CNN caved on the First Amendment of all things. I disagree. I respectfully disagree.

Those remarks somewhat echo what he said to CNN senior media correspondent Brian Stelter shortly after he was canned, as he claimed in that conversation that CNN was caving to bullies.

Lord further told the AP that he had received a tidal wave of support from conservatives following his firing. One of those conservatives is White House chief strategist Steve Bannon, who called the American Spectator columnist last night to encourage him to keep fighting.

[image via screengrab]

Follow Justin Baragona on Twitter: @justinbaragona

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Jeffrey Lord Speaks Out on Firing: 'CNN Caved on the First Amendment' - Mediaite

Now, more than ever, D.C.s Newseum serves as a hub for the history and importance of journalism.

The mission of the Newseum is to champion the five freedoms of the first amendment, and we do that through exhibits, through programs, and through education, said Scott Williams, Newseums chief operating officer.

Annually, the museum receives over 800,000 visitors, half of them students.

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Its a museum that really celebrates all of our freedoms more than anything, it surprises people by just how much we have in the Newseum, and how long it actually takes to tour, Williams told Whats Working in Washington.

The Newseum is different from Smithsonian museums. [Visitors] cannot imagine that another museum thats not a Smithsonian could compete on such a level we have a lot of stuff as well, so were not Americas attic, were Americas soul, he said.

When it comes to first amendments protections, Williams said the Newseum was important because one thing thats happening now, to our society, is that people are thinking about these things more.

Take fake news for example. That only entered our lexicon recently. Now, when people think about news, they understand that it not being fake is super important we just have a tiny role in making that known, he said.

To illustate the value of the first amendment and its protections, the Newseum takes advantage of all the best practices that museums have so we have storytelling, we rely on to some degree entertainment, said Williams.

Defense restoration fund might be a bargaining chip in budget talks

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Newseum provides first amendment perspective - FederalNewsRadio.com