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Category Archives: First Amendment

Court Expresses Concerns About First Amendment Violations Before Dismissing Appeal – PR Newswire (press release)

Posted: June 23, 2017 at 5:54 am

DENVER, June 22, 2017 /PRNewswire-USNewswire/ -- On Tuesday, June 20, a three-judge panel of the United States Court of Appeals for the Tenth Circuit issued its opinion in Sause v. Bauer, in which First Liberty Institute and Gibson, Dunn & Crutcher, LLP represent Mary Anne Sause. Police ordered Sause, a devout Catholic, to stop praying in her own home while investigating a noise complaint.

Writing for the majority Judge Moritz stated, "We assume that the defendants violated Sause's rights under the First Amendment when, according to Sause, they repeatedly mocked her, ordered her to stop praying so they could harass her, threatened her with arrest and public humiliation, insisted that she show them the scars from her double mastectomy, and then 'appeareddisgusted' when she complied all over a mere noise complaint."

Read the opinion by clicking here.

"Although the decision to uphold the lower court's dismissal is disappointing, the harsh criticism of the officers' conduct in this case supports our First Amendment claim," Jeremy Dys, Deputy General Counsel for First Liberty Institute reiterated, "No one should face the prospect of being arrested for praying in their own home."

In defending the police officers' actions, the government argued that the First Amendment's Free Exercise Clause only "protects an individual's right to choose a religion." First Liberty attorneys representing Sause argued that this misconstrued the Free Exercise Clause, which protects not only the right to choose a religion, but also the right to freely exercise one's faith.

While Ms. Sause's appeal was ultimately unsuccessful, the court stated clearly that Sause's First Amendment rights may have been violated, but the legal doctrine of qualified immunity shields the officers from any liability. The concurring opinion condemned the police officers' "extraordinary contempt of a law abiding citizen."

Read more and view legal documents and photos at

About First Liberty InstituteFirst Liberty Institute is the largest legal organization in the nation dedicated exclusively to defending religious freedom for all Americans. Read more at

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SOURCE First Liberty Institute

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Court Expresses Concerns About First Amendment Violations Before Dismissing Appeal - PR Newswire (press release)

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Sen. Sheldon Whitehouse is a hypocrite on the First Amendment – Washington Examiner

Posted: June 22, 2017 at 4:52 am

What can powerless, concerned citizens do in response to President Trump's move to withdraw the United States from the Paris Climate Agreement?

Here's a pretty good answer from Sen. Sheldon Whitehouse, D-R.I.:

If you haven't joined an environmental group, join one. If your voice needs to be heard, get active. If you are a big corporation with good climate policies that has shied away from engaging politically, it's time to engage.

Taken from his official statement on the withdrawal, Whitehouse describes exactly the type of activity the First Amendment was written to protect. When government takes action that citizens find objectionable, the First Amendment protects their right to organize, petition, and speak out. In other words, it protects the right to "get active."

Unfortunately, Whitehouse has spent his political career promoting efforts to hamper just this sort of civic engagement.

He uses the megaphone that comes with his position of power to rail against the rights of advocacy groups that choose to respect the privacy of their donors. And he supports bills that would cripple all but the most well-funded groups.

Whitehouse has introduced the so-called "DISCLOSE Act" multiple times now. DISCLOSE is a contrived acronym for "Democracy Is Strengthened by Casting Light on Spending in Elections."

Whitehouse and his allies say this bill would increase transparency. But the "light" that would be cast would not shine on those in power, such as senators. We wouldn't know anything about what groups or persons he meets with behind closed doors.

Rather, the bill targets citizen groups that seek to hold those in power accountable. Whitehouse would like us to believe that the legitimate interest in government transparency necessitates exposing the personal information of private citizens who choose to join groups and advocate for social change.

Disclosing the names, addresses, occupations, and employers of citizens who give to advocacy groups exposes people to potential intimidation and harassment. So if his bill became law, fewer are likely to want to join an environmental group. The loss of privacy increases the costs of civic engagement.

The laws drive up compliance costs for groups too. Disclosure laws are very complex. They require groups to file frequent, detailed reports to government agencies. To stay in compliance, groups must hire expensive lawyers and spend resources on exhaustive record-keeping. As a result, Whitehouse is promoting laws that would directly hinder citizens' willingness and ability to "get active."

The DISCLOSE Act is just one part of Whitehouse's endless crusade against the free speech rights of groups he likes to call "dark money" organizations. The pejorative term "dark money" refers to money spent on speech by groups that do not have to publicly report the private information of their donors to the government.

One such "dark money" group is the Sierra Club. Among the most well-known environmental advocacy groups in the nation, it is presumably one of the groups Whitehouse would encourage concerned citizens to join.

The Sierra Club explicitly offers to protect the privacy of its donors, including corporate donors. So, it clearly has supporters who desire anonymity and with good reason. Surely, some of those supporters would choose not to donate if they no longer had this option.

Whitehouse's call for increased political engagement from corporations highlights his apparent myopic view that the First Amendment only applies to advocacy he agrees with as well.

Whitehouse makes no attempt to hide his animus toward corporate political speech. He has repeatedly co-sponsored a constitutional amendment that, among other abominations it would do to the First Amendment, seeks to grant Congress unlimited power to prohibit any corporate entity from spending money on political speech.

No word on whether he favors an exception for corporations with "good" policies on climate change.

It is heartening to see that Whitehouse is now encouraging citizens (and corporations) to engage in political speech instead of yet again attempting to silence opposing viewpoints.

His statement demonstrates that he does indeed understand the value of First Amendment-protected advocacy. However, the statement is also an example of the far too common tendency among many politicians to view only friendly advocacy as legitimate.

The First Amendment protects the right of every American to privately support an environmental group. It also supports the right of every corporation to speak in opposition to the president's actions regarding climate policy.

But Whitehouse must realize that the First Amendment also protects the right of citizens, nonprofit groups, and corporations to engage in political speech he opposes. In the end, his anti-speech objectives will harm the First Amendment rights of his allies as much as his opponents.

Alex Baiocco is a Communications Fellow at the Center for Competitive Politics in Alexandria, Virginia.

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Sen. Sheldon Whitehouse is a hypocrite on the First Amendment - Washington Examiner

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Ted Cruz: The First Amendment is not about opinions you agree with. – Caffeinated Thoughts

Posted: at 4:52 am

Yesterday, U.S. Senator Ted Cruz (R-TX) participated in a Senate Judiciary Committee hearing today titled Free Speech 101: The Assault on the First Amendment on College Campuses.

During his opening remarks he offered a passionate defense of the First Amendment which you can watch below:

Below is the transcript of his remarks:

Thank you Mr. Chairman and thank you for holding this very important hearing. Free speech matters. Diversity matters. Diversity of peoples backgrounds, but also diversity of thought. Diversity of ideas. Universities are meant to be a challenging environment for young people to encounter ideas theyve never seen, theyve never imagined, and that they might passionately disagree with. If universities become homogenizing institutions that are focused on inculcating and indoctrinating, rather than challenging, we will lose what makes universities great.

The First Amendment is not about opinions you agree with. Its not about opinions that are right and reasonable. The First Amendment is about opinions that you passionately disagree with and the right of others to express them. Its tragic, what is happening at so many American universities where college administrators and faculties have become complicit in functioning essentially as speech police, deciding what speech is permissible and what speech isnt. You see violent protests the senior Senator from California referred to. In acting effectively, a hecklers veto, where violent thugs come in and say, This particular speaker I disagree what he or she has to say and therefore I will threaten physical violence if the speech is allowed to happen. And far too many colleges and universities quietly roll over and say, Okay, with the threat of violence, we will effectively reward the violent criminals and muzzle the First Amendment.

I saw a recent study from the Knight Foundation that said a majority of college students believe the climate on their campus has prevented people from saying what they believe out of fear of giving offense. What an indictment of our university system. And what does it say about what you think about your own ideas? If ideas are strong, if ideas are right, you dont need to muzzle the opposition. You should welcome the opposition. When you see college faculties and administers being complicit or active players in silencing those with opposing views, what they are saying is they are afraid. They are afraid that their ideas cannot stand the dialectic, cannot stand opposition, cannot stand facts or reasoning or anything on the other side, and it is only through force and power that their ideas can be accepted.

I am one who agrees with John Stewart Mill the best solution for bad ideas, for bad speech, is more speech and better ideas. Are there people with obnoxious ideas in the world? Absolutely. The Nazis are grotesque, and repulsive, and evil. And under out constitution they have a right to speak and the rest of us have a moral obligation to denounce what they say. The Ku Klux Klan are a bunch of racist, bigoted thugs, who have a right to express their views. And we have an obligation then to confront those views which are weak, poisonous, and wrong, and confront them with truth. We dont need to use brute force to silence them because truth is far more powerful than force. This is an important hearing. I thank the witnesses for being here and I thank the chairman for hosting.

Shane Vander Hart is the founder and editor-in-chief of Caffeinated Thoughts. He is also the President of 4:15 Communications, LLC, a social media & communications consulting/management firm. Prior to this Shane spent 20 years in youth ministry serving in church, parachurch, and school settings. He has also served as an interim pastor and is a sought after speaker and pulpit fill-in. Shane has been married to his wife Cheryl since 1993 and they have three kids. Shane and his family reside near Des Moines, IA.

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Former FCC Commissioner: Net Neutrality Is a First Amendment Issue – Truth-Out

Posted: at 4:52 am

In just a few short months, the Trump wrecking ball has pounded away at rules and regulations in virtually every government agency. The men and women the president has appointed to the Cabinet and to head those agencies are so far in sycophantic lockstep, engaged in dismantling years of protections in order to make real what White House strategist Steve Bannon infamously described as "the deconstruction of the administrative state."

The Federal Communications Commission is not immune. Its new chair, Republican Ajit Pai, embraces the Trump doctrine of regulatory devastation. "It's basic economics," he declared inan April 26 speech at Washington's Newseum. "The more heavily you regulate something, the less of it you're likely to get."

His goal is to stem the tide of media reform that in recent years has made significant progress for American citizens. Even as we rely more than ever on digital media for information, education and entertainment, Pai and his GOP colleagues at the FCC seek to turn back the clock and increase even more the corporate control of cyberspace.

Net neutrality, the guarantee of an internet open to all, rich or poor, without preferential treatment, was codified by the FCC in 2015. Pai -- a former lawyer for Verizon -- wants net neutrality reversed and has taken the first steps toward its elimination. He has abandoned media ownership rules and attacked such FCC innovations asthe Lifeline programthat subsidizes broadband access for low income Americans. Among other rollbacks, he also has opposed rules capping the exorbitant cost of prison phone calls (that cap was overturnedon June 13 by the US Court of Appeals).

To see more stories like this, visit Moyers & Company at Truthout.

A veteran of the FCC, Michael Copps vehemently opposes Pai's master plan to strengthen the grip of big business on our media. Copps served two terms as a commissioner, including a brief period as interim chair. He also has taught history, worked as chief of staff to former South Carolina Sen. Fritz Hollings and was an assistant secretary of commerce.

Today, Copps is special adviser for the Media and Democracy Reform Initiative at the nonpartisan grassroots organization Common Cause. He "just may be,"Bill Moyers once said, "the most knowledgeable fellow in Washington on how communications policy affects you and me."

Recently, I spoke with Copps to get his assessment of how the election of Donald Trump and Ajit Pai's FCC chairmanship are affecting Americans and the media landscape. "I remain convinced that the last presidential election we had was of, by, and for, big media," he said. "It made billions of dollars for these big media companies. We're entering into a period where there likely will be more mergers than we've ever had before. The political and marketplace atmosphere that we have in this country right now favors them."

The transcript that follows has been edited for length and clarity.


Michael Copps:[CBS CEO Les] Moonves said it best: "I don't know if Donald Trump is good for the country. but he's damn good for CBS." The election was just a glorified reality show and I do not think it was an aberration. Until we get that big picture straightened out and we get a civic dialogue that's worthy of the American people and that actually advances citizens' ability to practice the art of self-government -- that informs citizens so they can cast intelligent votes and we stop making such damn-fool decisions -- we're in serious trouble.

To me, that remains the problem of problems, it remains at the top of the list. Journalism continues to go south, thanks to big media and its strangulation of news, and there's not much left in the way of community or local media. Add to that an internet that has not even started thinking seriously about how it supports journalism. You have these big companies like Google and Facebook who run the news and sell all the ads next to it, but what do they put back into journalism? It isn't much.

I don't think right now that commercial media is going to fix itself or even that we can save it with any policy that's likely in the near-term, so we have to start looking at other alternatives.

I don't think right now that commercial media is going to fix itself or even that we can save it with any policy that's likely in the near-term, so we have to start looking at other alternatives. We have to talk about public media -- public media probably has to get its act together somewhat, too. It's not everything that Lyndon Johnson had in mind back in 1967 [when the Public Broadcasting Act was signed], but it's still the jewel of our media ecosystem. So I'm more worried than ever about the state of our media -- not just fake news but the lack of real news.

That's priority No. 1; I don't think you solve anything until you find some ways to repair our commercial media. That's not coming from inside the fabled Beltway anytime soon. It'll require major input from the grass roots. Big media won't cover its own shortcomings, so we have to have a national conversation and make some democracy-encouraging decisions. We just have to find a way.

Michael Winship: What about "fake news?"

The fake news thing is a challenging phenomenon. No one has a viable solution yet that I know of. Again, don't look to Washington for much input under the present management. Maybe reinvigorating real news, the fact-based investigative journalism that big media has done so much to eliminate, would be the best solution. True journalism can do more than anything else to push aside fake news.

So how do you characterize the Trump administration's attitude toward communications issues?

True journalism can do more than anything else to push aside fake news.

This is not populism; this is a plutocracy. Trump has surrounded himself with millionaires and billionaires, plus some ideologues who believe in, basically, no government. And the Trump FCC already has been very successful in dismantling lots of things -- not just the net neutrality that they're after now, but privacy, and Lifeline, which is subsidized broadband for those who can't afford it. And just all sorts of things up and down the line. The whole panoply of regulation and public interest oversight -- if they could get rid of it all, they would; if they can, they will.

I think the April 26 speech that Ajit Pai gave at the Newseum, which was partially funded, I think, by conservative activist causes, was probably the worst speech I've ever heard a commissioner or a chairman of the FCC give. It was replete with distorted history and a twisted interpretation of judicial decisions. And then, about two-thirds of the way through, it became intensely political and ideological, and he was spouting all this Ronald Reagan nonsense -- if the government is big enough to do what you want, it's big enough to take away everything you have, and all that garbage. It was awful.

It's maybe the worst FCC I've ever seen or read about.

How much of all this do you think is just simply the idea of destroying anything supported by the Obama White House? Is it that simple?

Well, I think that some of it is the ego problem, but I think it goes beyond that. I think there is that right wing, pro-business, invisible hand ideology, and then there's just the unabashed and unprecedented and disgusting level of money in politics. I don't blame just the Republicans; the Democrats are just about as beholden to it, too.

You mentioned Pai's speech at the Newseum; does he have any real philosophy?

Yes, I think he believes this stuff, I think he's a true believer. He was in the Office of General Counsel when I was in there -- very articulate, very bright, very pleasant. He is an attractive personality, but he has thisWeltanschauungor whatever you want to call it that is so out of step with modern politics and where we should be in the history of this country that it's potentially extremely destructive. And Michael O'Rielly, the other Republican commissioner, is about the same. He's an ideologue, too.

It's all about the ideology, the world of big money, the access that the big guys have and continue to have. It's not that the FCC outright refuses to let public interest groups through the door or anything like that; it's just the lack of resources citizens and public interest groups have compared to what the big guys have. The public interest groups don't have much of a chance, but I think they've done a pretty good job given the lack of resources.

Did you expect Pai to move so fast against net neutrality?

It doesn't surprise me, but it's so dangerous. Net neutrality is thesine qua nonof an open internet -- "You can't have one without the other," as the old song goes. We'll need to hope for a good court outcome if the FCC succeeds in eliminating the rules. But I really don't see how big telecom or the commission can make a credible case to overturn what the court approved just two years ago, and then go back to what the court overturned before that. It's downright surreal. But citizens should not limit their pro-net neutrality messages to just the FCC; Congress needs to understand how popular these rules are, so they keep their hands off it, which they may be more inclined to do as the 2018 elections come closer.

There's so much of an X factor to everything.

There really is. I just hope we can get the media covering it better. I think if we get a couple of really big mergers, and of course we haveAT&T and Time Warnerout there now, which Trump said he was going to oppose. I don't think he really will, but that itself should be an issue. And then, if we can join that to the net neutrality issue, then I think we can get some media attention. If we can do that with Time Warner and AT&T or whatever other mergers come along, certainly includingSinclair-Tribune, then we can actually make some progress. I sure hope so.

There still seems to be a lot public support for net neutrality.

No question about it, but there would be an avalanche if more people were informed about the issue by the media. Many Trump voters, I am convinced, are not consumers who support $232 a year for a set-top box or who like constantly rising bills for cable and internet service, or who want a closed internet. That's not why they voted for him.

Have the net neutrality rules passed in 2015 had a chance to work? Have they had a chance to be effective?

Yes, I think so. Some say they are a solution in search of a problem, but that's not true. I think the companies have been on their good behavior over the last few years, by and large -- but there have been numerous abuses, too. But once you throw out the rules we have now, it'll be "Katy bar the door," and by the time we get another administration in, either the FCC or the Congress, it'll probably be too late to reverse the tide.

What are the implications for free speech?

They are huge. If you have an internet service provider [ISP] that's capable of slowing down other sites, or putting other sites out of business, or favoring their own friends and affiliates and customers who can pay for fast lanes, that's a horrible infringement on free speech. It's censorship by media monopolies.

It's tragic: here we have a technology, the internet, that's capable really of being the town square of democracy, paved with broadband bricks, and we are letting it be taken over by a few gatekeepers. This is a first amendment issue; it's free speech versus corporate censorship.

I want to talk to you about privacy, about protecting consumer information that's on the net.

If the huge internet service providers are going to glean all manner of personal information about us and share it with others or sell it to others, we ought to have a right to say, "Yes, count me in, I don't mind that," or "No, I don't want any part of that." And I think the vast majority would say, "No, thank you, I don't want any part of that." So privacy is a huge issue. We've talked about it some in national security terms, but it's a much bigger issue in citizen terms and what it does to the average person.

You mentioned Lifeline; I was wondering if you could talk a little bit more about that

Lifeline is directed toward those who cannot afford to be connected to broadband. How do they find a job when most corporations don't accept paper resumes or don't want to interview you in person? Nowadays you have to email something to potential employers. How do you and your kids educate yourselves? How do kids do their homework when they don't have broadband, and the kid in the next town or even in the next block has high-speed broadband? How do you care for your health -- especially that now we're getting seriously into tele-health and tele-medicine?

You cannot be a fully functioning 21st-century citizen in this country unless you have access to high-speed broadband. It's as simple as that. We shouldn't settle for less. I don't know that the FCC can do this by itself, and we need a national mission to do this. And we need everybody pushing for it. I hope it's going to be included in Trump's infrastructure plan, but I'll be surprised if it's in such a meaningful way that it's going to get coverage for all the people in the inner cities and rural America.

You cannot be a fully functioning 21st-century citizen in this country unless you have access to high-speed broadband. It's as simple as that.

And, you know, we're way, way down in the rankings in broadband penetration, adoption and affordability. And without competition, even when you have broadband, without competition people are paying through the ceiling for inferior service. They've got to feed families and find shelter, but broadband is also essential to them.

I think another issue that a lot of people aren't aware of is the whole prison telephone problem.

Commissioner Mignon Clyburn has done a fantastic job on that. We have such a high percentage of our population in the United States incarcerated and for their families to communicate with them or vice versa has become just very, very expensive. It's an industry that has made a lot of money off of other people's distress, and if you have a son in prison, and you can't afford to communicate with them, that doesn't help anybody, including the person who's in prison. Commissioner Clyburn made some good progress on interstate calling in this regard, but then you've got to go state by state, and now the court has just thrown some obstacles in the way of the intrastate calls. So, there's work to be done, and we'll see how far it goes. But we were on the track of making good progress under the previous commission.

Do you think there's any interest in consumer service remaining among the Republicans on the FCC or in Congress?

It's mighty hard to find if you look at all the party-line votes and partisanship at work. I think there will be some cooperation for infrastructure if broadband is included. It depends on how much. Some Republicans will vote for that, but you can't find a Republican for net neutrality, and you can't find a Republican for doing anything to counteract the outrageous influence of money in the political bloodstreams.

With so many of these American Enterprise Institute types and various other conservative groups and people wielding influence, would they lobby to eliminate the FCC completely?

Oh, yes indeed. There were reports during the transition that some of those people were actually saying, "Do we even need an FCC? Why don't we just get rid of it?"

So what can we all do at this point?

Figure out how you really make this a grass-roots effort -- and not just people writing, in but people doing more than that. In July, we will have a day devoted to internet action, so stay tuned on that. In addition, as Bill Moyers says, "If you can sing, sing. If you can write a poem, write a poem." Different initiatives attract different audiences, so whatever you can do, do. John Oliver made a huge difference in getting us to net neutrality and now he's helping again. If you went up to the Hill right afterthat first John Oliver show on net neutrality[in 2014], you saw immediately that it made a difference with the members and the staff.

There's no one silver bullet, no "do this" and it suddenly happens. You just have to do whatever you can do to get people excited and organized. It's as simple as that.

So that's where the hope is?

Well, that's where my hope is. I don't see anything else unless we get a change in power in Washington, and not just the name of the party in control but candidates who really are ready for a change and ready to do something to make it more reflective of what, I think, is the popular will.

Which of the Democrats are good on these issues?

There are a lot of them. I hesitate to get into names for fear of missing some. The problem is that Republicans inside the Beltway are joined in lockstep opposition on almost all these issues, and the level of partisanship, lobbying, big money, and ideology have thus far been insurmountable obstacles. But I believe if members of Congress spent more time at home, holding more town hall meetings, they would quickly learn that many, many of their constituents are on the pro-consumer, pro-citizen side of these issues.

It's just such a formative time, and in many respects the future is now. I don't know how long you can let this go on. How long can you open the bazaar to all this consolidation, how much can you encourage all this commercialization, how much can you ignore public media until you get to the point of no return where you can't really fix it anymore? And I also think that the national discourse on the future of the internet has really suffered while we play ping pong with net neutrality; one group comes in, does this, the other group, comes in and reverses it, boom, boom, boom. And net neutrality is not the salvation or the solution to all of the problems of the internet. As you know, it's kind of the opening thing you have to have, it lays a foundation where we can build a truly open internet.

But net neutrality alone doesn't solve consolidation, it doesn't solve commercialization, it doesn't solve, really, the big questions of the future of the internet. Add to the list issues of artificial intelligence and is AI going to put us out of work? These aren't strictly communication issues, but they are internet issues. What does AI mean for the future of work in our society? Are we even going to be working? Or, can we say the internet is throwing people out of work without sounding Luddite, because that's been said throughout history and it's been proven wrong, but I think now it looks like a lot of people already have been thrown out of work by it.

If Hillary Clinton had been elected, I would have gone down and talked with her and suggested a White House conference on the future of the internet. You can't answer all these questions that I just posed but you can ask the questions and you can get the best minds in the country talking about them. Give the conference a mandate and get them to come back with a report and some recommendations and at least put people on it with enough visibility that the media has to cover it.

If we could win net neutrality, which is a stretch, there will be a lot of people who say, "Well, that takes care of the internet, everything's fine and dandy right now." But that's not true at all. It's just not true.

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Former FCC Commissioner: Net Neutrality Is a First Amendment Issue - Truth-Out

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Symposium: The First Amendment silences trademark – SCOTUSblog (blog)

Posted: June 21, 2017 at 3:53 am

Ned Snow is a professor of law at the University of South Carolina School of Law.

In Matal v. Tam (formerly called Lee v. Tam), the Supreme Court ruled unconstitutional the disparagement clause of the Lanham Act, which prevents registration of marks that employ disparaging names. The linchpin of its opinion is the conclusion that the disparagement clause constitutes viewpoint discrimination. Secondarily, the court relies on the argument that the disparagement clause does not support the governments interest in regulating speech. As I explain below, these arguments are unconvincing. Finally, the court articulates a broader policy concern of upholding restrictions that directly suppress speech in the commercial marketplace. That concern, I argue, is unfounded for the disparagement clause.

Viewpoint discrimination

Viewpoint discrimination is simple to understand (although sometimes difficult to apply): It occurs when the government prohibits a particular view or takes a position rather than prohibiting a general category or subject matter of speech. At first blush, the disparagement clause seems to prohibit only a general category of speech rather than a particular viewpoint: The clause does not adopt a position, indiscriminately applying to all hate speech, regardless of which person or institution a mark might disparage. Yet the court sees it differently. Justice Samuel Alito explains that a prohibition of all disparaging views is still a prohibition of viewpoints. In his words: Giving offense is a viewpoint. And Justice Anthony Kennedy further explains: To prohibit all sides from criticizing their opponents makes a law more viewpoint based, not less so. Apparently, then, prohibiting all positions on a subject matter is just as viewpoint discriminatory as prohibiting only one. End of case, or so it would seem.

But this rationale is troubling. It calls into question other fundamental provisions of the Lanham Act. The Lanham Act prohibits registration of marks that both provide truthful information and make subjective assertions about their products. More specifically, the Lanham Act prohibits registration of marks that are generic descriptions of goods, that are specific descriptions of characteristics of goods, that are surnames (even of the source), and that indicate the geographic origin of a good. (Some of these types of marks may gain trademark protection over time and through an expensive showing of secondary meaning, but for purposes of viewpoint-discrimination analysis, the fact that they are denied in the absence of these circumstances is all that matters.) In short, the Lanham Act specifically prohibits applicants from telling truthful information and making claims about a good or its source. Are these provisions of the Lanham Act viewpoint discriminatory? According to Alitos reasoning, it would seem so: Telling the truth is a viewpoint a viewpoint, incidentally, that is much more central to the purpose of the First Amendment than is hate speech. And according to Kennedys reasoning: [t]o prohibit all sides from [making claims about their products] makes a law more viewpoint based, not less so, suggesting that a blanket prohibition of descriptive truths is viewpoint discriminatory. According to the reasoning of the Tam court, the Lanham Acts provisions that bar registration for truthful content would seem viewpoint discriminatory.

Consider also the Lanham Acts prohibition of government symbols. Section 2 of the Lanham Act bars trademark protection for any mark that [c]onsists of or comprises the flag or coat of arms or other insignia of the United States, or of any State or municipality, or of any foreign nation, or any simulation thereof. Last time I checked, preventing someone from expressing his patriotism by displaying the United States flag constituted an abridgement of free speech. Under the courts reasoning, the Lanham Acts prohibition of trademark registration for government symbols would be viewpoint discriminatory.

How, then, is a prohibition against disparaging speech any more viewpoint discriminatory than the other prohibitions in the Lanham Act? Stated differently, what principle dictates the viewpoint distinction between the disparagement clause and the other criteria for trademark eligibility? I dont see it. The disparagement clause cannot be viewpoint discriminatory for the simple reason that if it were, it would imply the viewpoint-discriminatory nature of other fundamental registration criteria.

Limited public forum

Why does it matter whether the discrimination is based on viewpoint or subject matter? Alito explains that if the discrimination were not viewpoint based, it might be justified under the limited-public-forum doctrine. Congress has created a public forum the trademark registration system to facilitate private speech, and as a result, the trademark system appears to constitute a limited public forum. In such a metaphysical forum, Congress may impose content-based restrictions that are viewpoint neutral, to the extent that the restrictions support the purpose of the forum. The disparagement clause, then, would be permissible to the extent that it supports the purpose of the trademark system, which I address below in discussing commercial-speech regulation.

Commercial speech regulation

Tellingly, Alito does not rely solely on viewpoint discrimination to condemn the disparagement clause. He analyzes the clause under the test for commercial-speech regulation. Key to this analysis is the government interest in regulating speech. Stated another way: What is it about the context of trademark law that would justify Congress in withholding registration from a disparaging mark? One interest is the orderly flow of commerce. That seems reasonable, given that hate speech does tend to interfere with people engaging in commercial transactions. Alito, however, argues that the statute is not narrowly tailored to this interest, so as to prevent only the sort of invidious discrimination that would disrupt commerce. That is debatable. Arguably, the court could interpret the disparagement clause narrowly, to avoid an unconstitutional interpretation.

Putting aside the orderly-flow-of-commerce interest, the court failed to recognize another important government interest underlying the disparagement clause: the interest in facilitating a peaceful society among citizens of disparate backgrounds and beliefs. A system of commerce that invites all to participate is integral to the fabric of a peaceful society. Religion, ideology and political party all yield to the commercial transaction of buyer and seller cooperating. Disparaging marks threaten this benefit of commerce. Disparaging marks work against universal cooperation in the marketplace. They facilitate an environment of exclusion. They promote disrespect rather than cooperation. Commercial offers for sale, which are supposed to facilitate universal cooperation, become a means to promote disrespect towards others. Simply put, disparaging marks contravene the critically important social benefit of a commercial system. Preventing those marks serves the underlying and broad purpose of commerce generally.

Thus, I am doubtful about the doctrinal underpinnings of the Tam decision. Its rationale for viewpoint discrimination appears weak when compared with the Lanham Acts other discriminatory criteria for trademark registration. Similarly, the disparagement clause appears justifiable as a commercial-speech regulation because it supports the governments interest in facilitating universal participation in the commercial marketplace.

Speech suppression in the commercial marketplace

All this being said, the court does raise an understandable concern. Alito frankly voices that concern:

The commercial market is well stocked with merchandise that disparages prominent figures and groups, and the line between commercial and non-commercial speech is not always clear, as this case illustrates. If affixing the commercial label permits the suppression of any speech that may lead to political or social volatility, free speech would be endangered.

It would seem, then, that the court is fearful that protected and valuable speech could be suppressed merely by labeling it as commercial. What if Congress passed a law that prohibited any critical speech in commercial print? Would the commercial nature of the speech justify such broad content-based regulation? First is a ban on disparaging trademarks, and next is a ban on The New York Times. Loudly the court opines that commerciality does not justify prohibitions on speech that permeates public life in this particular instance, trademarks.

This concern makes sense to a point. Certainly we must avoid suppressing ideas in the name of facilitating commerciality. Unconstitutional speech suppression might arise were Congress to withhold money, impose a fine or affix criminal penalties in response to speech content. But none of these acts of speech suppression is present here. Indeed, according to the court, the benefit of trademark registration is not the same as a cash subsidy or its equivalent. The benefit of registration lies entirely in the commercial realm, thereby limiting the influence of the disparagement clause to that commercial realm. For that matter, withholding registration does not prevent financial success in the commercial marketplace. Even without registration, a disparaging mark can still serve as a trademark. It can still identify source. And owners of disparaging marks can still fully participate in the commercial marketplace. So although a disparaging mark would lack the commercial benefit of registration, that mark could still succeed both financially and philosophically in the marketplace of ideas. Speech suppression is not occurring here.

In sum, Congress should be able to reward civility in commercial discourse. A society can both appreciate the value of contrary and even hateful ideas and at the same time reward commercial speakers who choose to engage civilly. There is neither suppression nor viewpoint discrimination when the people choose to reward civil discourse in commercial transactions.

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Recommended Citation: Ned Snow, Symposium: The First Amendment silences trademark, SCOTUSblog (Jun. 20, 2017, 12:43 PM),

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Supreme Court unanimously reaffirms: There is no ‘hate speech … – Washington Post

Posted: at 3:53 am

From todays opinion by Justice Samuel Alito (for four justices) in Matal v. Tam, the Slants case:

[The idea that the government may restrict] speech expressing ideas that offend strikes at the heart of the First Amendment. 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.

Justice Anthony Kennedy wrote separately, also for four justices, but on this point the opinions agreed:

A law found to discriminate based on viewpoint is an egregious form of content discrimination, which is presumptively unconstitutional. A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all. The First Amendment does not entrust that power to the governments benevolence. Instead, our reliance must be on the substantial safeguards of free and open discussion in a democratic society.

And the justices made clear that speech that some view as racially offensive is protected not just against outright prohibition but also against lesser restrictions. In Matal, the government refused to register The Slants as a bands trademark, on the ground that the name might be seen as demeaning to Asian Americans. The government wasnt trying to forbid the band from using the mark; it was just denying it certain protections that trademarks get against unauthorized use by third parties. But even in this sort of program, the court held, viewpoint discrimination including against allegedly racially offensive viewpoints is unconstitutional. And this no-viewpoint-discrimination principle has long been seen as applying to exclusion of speakers from universities, denial of tax exemptions to nonprofits, and much more.

(Justice Neil Gorsuch wasnt on the court when the case was argued, so only eight justices participated.)

Asian-American dance rock band The Slants talk about their Supreme Court case, including a supporter they'd rather not have: Dan Snyder. (Gillian Brockell,Jesse Rosten/The Washington Post)

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Balancing the First Amendment and Students’ Safety – Roll Call

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When Zachary Wood arrived at Williams College his freshman year, he had high hopes for an academic environment that challenged his views. Now going into his senior year, Wood says he has faced backlash from students and administrators for inviting controversial speakers to campus.

Wood appeared before the Senate Judiciary Committee on Tuesday, part of a panel discussing free speech on college campuses.

Wood describes himself as a liberal Democrat, but he brought provocative speakers representing diversepolitical ideologies to campus. He wanted to expose students to ideas they disagree with.

One such speaker invitation prompted the Williams College administration to cancel the event and revise the campus speaker policies.

Wood said this was impermissible, undemocratic, and antithetical to the intellectual character of the college

Williams College is not alone in disinviting speakers. The Foundation for Individual Rights in Education (FIRE) has tracked attempts to disinvite college speakers since 2000. It documented an upward trend. In 2016, FIRE recorded 43 incidents in which students or administrators attempted to cancel a planned speech.

Senator Ted Cruz lambasted college administrators for acting as speech police.

If universities become homogenizing institutions that are focused on inculcating and indoctrinating rather than challenging, we will lose what makes universities great, Cruz said.

The issue of disinviting speakers gained national attention in February when violent protests broke out at the University of California, Berkeley in response to a scheduled talk by alt-right provocateur Milo Yiannopoulos.

More recently, Berkeley cancelled a talk by commentator Ann Coulter amid more threats of protest.

Ranking Democrat Sen. Dianne Feinstein pointed to these violent demonstrations as justification for college administrators cancelling speeches. The senator from California said university police forces often do not have the training and resources needed to handle these situations.

Feinstein argued that Berkeley has a right to protect its students from demonstrations once they become acts of violence.

While there was consensus among panel members on the importance of free speech on campus, the issue came to the application of that right in practice.

UCLA Law professor Eugene Volokh said it was important to punish violent protesters to ensure that they dont continue to disrupt speeches. He said this will sometimes require bringing in more law enforcement.

If you violate the law and by this I mean laws against vandalism, laws against violence, laws against physically shouting people down, then in that case you will be punished rather than having your goals be achieved, Volokh said.

Feinstein pushed back on the suggestion of more law enforcement to control college protests. She asked whether any lessons were learned fromthe 1970 Kent State shooting, in which Ohio National Guardsmen shotand killed four students and injured nine others.

Frederick Lawrence, secretary and CEO of the Phi Beta Kappa Society, said colleges must start with a strong presumption in favor of the speech but make judgements based on the circumstances. As a former president of Brandeis University, Lawrence said it is greatly exaggerated to expect colleges to have the resources to deal with all types of violent protests.

Lawrence said that no matter the speakers beliefs, colleges should find ways to host the event. He suggested making speeches private events if needed, closed to people outside the university community.

Over the past few months, several states have taken up the issue of free speech on campus. A bill passed the North Carolina House in April that would ensure public universities be open to all speakers. It also would require sanctions on protesters who disrupt events.

Panelist Floyd Abrams, a prominent First Amendment lawyer, said he was apprehensive about state legislatures getting too close to the university campuses. Abrams said state legislatures should not dictate what colleges can teach or cannot teach.

On the federal level, a bipartisan resolution calling for the protection of free speech was introduced in the U.S. House of Representatives in May. If passed, the resolution would condemn university free speech zones and restrictive speech codes. The Senate does not have any similar legislation.

Calling himself a small government guy, Sen. Ben Sasse said he wants to see as little of this adjudicated by coercion and power and possible. The Nebraska senator and former college president called on college administrators to defend free speech on their campuses.

Following the hearing Sen. John Kennedy agreed with Sasse, making clear to reporters that federal intervention was not needed to solve the problem.

I dont want the government to have to come in and say this is acceptable and this isnt, Kennedy said. I want a university president to do his job and to have the guts to do it. And if he cant do it he ought to quit.

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What is the ‘do no harm’ position on the First Amendment in cyberspace? – Washington Post

Posted: at 3:53 am

On Monday in Packingham v. North Carolina,the justices unanimously (minus Gorsuch) voted to invalidate a North Carolina statute making it a felony for a registered sex offender to access a commercial social networking Web site where the sex offender knows that the site permits minor children to become members or to create or maintain personal Web pages. But Justice Alito, joined by Roberts and Thomas, concurred only in the judgment. All eight Justices agreed that the statute wasnt sufficiently tailored. Both opinions emphasized the possible application of the statute to,, and

So where did the opinions differ? The central disagreement between the two opinions is how judges applying the First Amendment should respond to the changing nature of cyberspace. From the majority:

While we now may be coming to the realization that the Cyber Age is a revolution of historic proportions, we cannot appreciate yet its full dimensions and vast potential to alter how we think, express ourselves, and define who we want to be. The forces and directions of the Internet are so new, so protean, and so far reaching that courts must be conscious that what they say today might be obsolete tomorrow.

This case is one of the first this Court has taken to address the relationship between the First Amendment and the modern Internet. As a result, the Court must exercise extreme caution before suggesting that the First Amendment provides scant protection for access to vast networks in that medium.

And from the concurrence:

The Court is correct that we should be cautious in applying our free speech precedents to the internet. Ante, at 6. Cyberspace is different from the physical world, and if it is true, as the Court believes, that we cannot appreciate yet the full dimensions and vast potential of the Cyber Age, ibid., we should proceed circumspectly, taking one step at a time. It is regrettable that the Court has not heeded its own admonition of caution.

The majoritys point that that what [courts] say today might be obsolete tomorrow is an important one that I discussed in the Internet context almost 20(!) years ago in Stepping into the Same River Twice: Rapidly Changing Facts and the Appellate Process.

But I want here to highlight a slightly different point. When it comes to changing phenomena (like cyberspace), what is the best default position with respect to the First Amendment? Should judges err on the side of starchy application of free speech tests, or a more flexible approach? This are not new questions. For instance, back in 1996, in Denver Area Education Telecommunications Consortium, Inc. v. FCC, the Supreme Court considered regulation of indecency on public access and leased access channels. Justice Souter wrote a concurrence suggesting that, in the fast-changing world of telecommunications, judges should heed the admonition First, do no harm. Justice Kennedy responded: Justice Souter recommends to the Court the precept, First, do no harm. The question, though, is whether the harm is in sustaining the law or striking it down. As I noted in a different article, the injunction [f]irst, do no harm provides little guidance unless we can identify what the do no harm position is.

In Mondays case, Justice Kennedys majority opinion, consistent with his concurrence in Denver Area and his First Amendment jurisprudence more generally, treats broad and rigorous application of First Amendment tests as the do no harm position in the ever-changing world of cyberspace. Justice Alitos concurrence wants a default that takes smaller steps and gives judges (and thus legislatures) more flexibility. Obviously there is no ineluctable answer here. But, once again, baselines are doing a lot of work.

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Guest column: National debate leads to First Amendment smarts at Vero Beach High School – TCPalm

Posted: at 3:53 am

David Jadon 2:39 p.m. ET June 20, 2017


After more than a month of bad decisions, Indian River County School administrators finally have displayed some smarts. It took an honors student's steadfast belief in the First Amendment, and worldwide attention, to make it happen.

That honors student J.P. Krause, a top student, rising seniorand the winner of the vote for Vero Beach High School's senior class presidency never knew what hit him. His classmates in hisAdvanced PlacementU.S. History class asked him to give a speech in support of his campaign, and his teacher encouraged him to do so. He gave a lighthearted, 2016 presidential campaign-inspired, 90-second speech, and his classmates laughed.

Krause said he was for liberty while his opponent was for higher taxes. He said he was opposed to the rival high school Sebastian River, and his opposing candidate was for it. Krause proposed building a wall between the two schools and making the other school pay for it. Joy Behar of "The View" later said on national television that J.P.'s off-the-cuff speech was "smart."

MORE |Superintendent overturns principal's call on Vero Beach High School class election

"Smart" Behar had that right. Indeed, the very next day after the speech the day of the election Krause represented Vero Beach High in a national academic competition. He came in 10th individually while his Vero Beach team came in third nationally.


Unfortunately, Krause had no idea trouble was afoot back at home. School administrators had learned of his campaign speech and decided it amounted to harassment. Of course, Krause had not harassed anyone in the speech, and anyone who saw the videoand knew Krauseknew he didn't and wouldn't have done so.

The principal disqualified Krause from the officeKrausewon fair and square, and punished him to boot. To add insult to injury, the principal decided the campaign speech should be entered into Krause's permanent disciplinary record as harassment.

Not so smart.

Laurence Reisman: Trump effect puts international spotlight on Indian River County school issue

When Larry Reisman of this newspaper heard about Krause, he wrote about the unfairness of the situation. Reisman called attention to the fact that Krausehad First Amendment rights the school did not consider. Pacific Legal Foundation, for whom I am working as a summer clerk, then got wind of it. Pacific Legal represents individuals and businesses when the government violates their constitutional rights. Punishing Krause for his humorous campaign speech clearly violated Krause's First Amendment rights.

Our Founding Fathers did not design the First Amendment to protect feelings. While under certain circumstances schools have the right to punish or censor student speech, this case did not fit those circumstances. Courts have ruled that school policies that go too far to censor speech are unconstitutional. So it is here.

A classmate had recorded the speech; the video demonstrated beyond dispute the school had wronged Krause.

Within days, the entire world had seen the video. Those on the left side of the aisle, including Whoopi Goldberg and Behar on "The View," and those on the right, including "Fox & Friends" and National Review, all sided with Krause. So did Univision, the New York Daily News and the London Daily Mail. The world took his side because reasonable people on the left, right and center know the First Amendment provides the bedrock for all of our freedoms.

The global attention finally caused some smarts at the local schoolhouse.

Sadly, this local uproar exemplifies a broader phenomenon across the country, where different viewpoints are censored or restricted by both college and high school administrators. The Founding Fathers and First Amendment scholars have recognized the importance of the "marketplace of ideas." Without it, free speech cannot truly exist.

Upon entering college, campuses greet students with free speech zones, oppressive speech regulations, banned speakers, safe spaces and censorship.Once the epicenter of discussion, debate and learning, campuses have become segregated intellectually, no longer challenging students to stand up, speak and engage civilly with one another.

Americans of all political stripes must speak up to put a stop to this nonsense.

J.P. Krause did nothing wrong. To the contrary, he is a champion of the First Amendment, standing up for his right to speak when so many others would bow down. Vero Beach High School should be proud of its new senior class president. The rest of the world is.

David Jadon, a summer law clerk at Pacific Legal Foundation, is a rising third-year law student at the University of Florida College of Law. Pacific Legal Foundation is representing J.P. Krause free of charge in his dispute with the Indian River County School Board.

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Eleventh Circuit Does Not Skim Over First Amendment Concerns in Labeling Milk – The National Law Review

Posted: at 3:53 am

Be careful not to skim over potential First Amendment challenges to commercial speech regulations in labeling cases. By whey of example, the Eleventh Circuit recently found that the actions of the Florida Commissioner of Agriculture and the Chief of the Florida Bureau of Dairy Industry violated Ocheesee Creamery LLCs First Amendment rights related to the labeling of its products.Ocheesee Creamery LLC v. Putnam, 851 F.3d 1228 (11th Cir. 2017).

Ocheesee Creamery is a dairy company that produces milk and other dairy products. One such product is an all-natural, additive-free 100% skim milk, which Ocheesee Creamery labels as skim milk on the product packaging.

Florida law restricts the sale of milk and other milk products not classified as Grade A products. A Grade A designation requires that any vitamin A that is lost or removed from a product during the skimming process be replaced. Because Ocheesees product did not qualify for this Grade A designation, the state of Florida notified Ocheesee that its all-natural skim milk did not meet the definition of milk and, thus, Ocheesee could only sell this product if it was labeled as imitation skim milk. Ocheesee refused since the only ingredient in its product was, in fact, skim milk. Ocheesee also refused to add vitamin A back into its all-natural product. Ocheesee Creamery filed a lawsuit challenging this restriction in the Northern District of Florida, which found in favor of the State.

On appeal, the Eleventh Circuit applied the Supreme Courts test for evaluating restrictions on commercial speech, which was set forth inCentral Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980). UnderCentral Hudson, a court considering a restriction on commercial speech must first determine whether the speech is protected under the First Amendment. The First Amendment protects commercial speech unless it 1) concerns unlawful activity or 2) is false or inherently misleading. The Eleventh Circuit found that neither of these exceptions applied to Ocheesee in this case.

First, the Eleventh Circuit held that Ocheesees use of the term skim milk on its product label was not unlawful because the states position was that under Florida law Ocheesee could call its product skim milk as long as the label also indicated that the product was imitation milk. Second, the Eleventh Circuit held that Ocheesees use of the term skim milk was not inherently misleadingor even, according to the Court, potentially misleadingbecause it was a statement of objective fact. As a result, the Court concluded, Ocheesees commercial speech on its all-natural skim milk label was constitutionally protected.

The Court then proceeded to applyCentral Hudsonsthree-pronged intermediate scrutiny test. Under this test, the Court must determine: 1) whether the asserted governmental interest is substantial; 2) whether the regulation directly advances the governmental interest asserted; and 3) whether it is not more extensive than is necessary to serve that interest.

The Eleventh Circuit focused its analysis on the third prong of the test, finding that Floridas restriction is clearly more extensive than necessary to achieve its goals. The Eleventh Circuit noted that there had been extensive negotiations between Ocheesee and the State concerning the language used on Ocheesees all-natural skim milk label, and pointed out that numerous less burdensome alternatives existed and were discussed by the State and the Creamery during negotiations that would have involved additional disclosure without banning the term skim milk. Consequently, the Court concluded that the restriction was more extensive than necessary to achieve the goals of preventing deception and ensuring adequate nutritional standards. The Court thus concluded that Floridas restriction of Ocheesees commercial speech violated the First Amendment and vacated the district courts grant of summary judgment in favor of the State.

The Eleventh Circuits decision offers some reassurance to companies that the First Amendment provides some protection for objectively truthful descriptions of their products, even in the face of restrictions imposed by various state labeling laws, although this protection continues to be balanced against the state interests served by these laws.

2017 Proskauer Rose LLP.

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