Wednesday, August 19, 2015
Balancing the harms and benefits of speech — what I call “free speech consequentialism” — is pervasive and seemingly unavoidable. Under current doctrine, courts determine if speech can be regulated using various forms of free speech consequentialism, such as weighing whether a particular kind of speech causes harms that outweigh its benefits, or asking whether the government has especially strong reasons for regulating particular kinds of speech. Recent scholarship has increasingly argued for more free speech consequentialism. Scholars maintain that free speech jurisprudence does not properly account for the harms caused by speech, and that it should allow for more regulation of harmful kinds of speech. This article evaluates the various ways courts already employ free speech consequentialism. It then establishes and defends a principled basis for determining when speech’s harms greatly outweigh its virtues. I argue that courts should engage in free speech consequentialism sparingly, and should constrain themselves to considering only the harms caused by speech that can be analogized to harms caused by conduct. In this article, I develop a framework that recognizes the need to incorporate free speech consequentialism, and to constrain it, at various stages of First Amendment analysis, in connection with both tort and criminal law. I then apply this framework to timely and difficult speech issues, including campus hate speech, revenge porn, trigger warnings, and government speech — with the aim of rehabilitating core values of our First Amendment doctrine and practice.
Ms. Goldberg's article is forthcoming in Volume 116, Columbia Law Review.
Friday, March 21, 2014
Yesterday, a unanimous Supreme Court of Illinois declared the state's eavesdropping law to be unconstitutional. The case is Illinois v. Melongo, No. 114852 (Ill., March 20, 2014).
The statute reads:
(a) A person commits eavesdropping when he:
(1) Knowingly and intentionally uses an eavesdropping device for the purpose of hearing or recording all or any part of any conversation or intercepts, retains, or transcribes electronic communication unless he does so (A) with the consent of all of the parties to such conversation or electronic communication or (B) in accordance with Article 108A or Article 108B of the "Code of Criminal Procedure of 1963", approved August 14, 1963, as amended; or
(3) Uses or divulges, except as authorized by this Article or by Article 108A or 108B of the "Code of Criminal Procedure of 1963", approved August 14, 1963, as amended, any information which he knows or reasonably should know was obtained through the use of an eavesdropping device.
The defendant argued that the statute violated the first amendment both as to the recording provision in (1) and the publishing provision in (3), both facially and as applied. The court observed that the law's stated purpose was to protect conversational privacy. The law, however, "deems all conversations to be private and, thus, not subject to recording absent consent, even if the participants have no expectation of privacy." The court held that the statute, "burdens substantially more speech than is necessary to serve a legitimate state interest in protecting conversational privacy." Therefore, the recording provision violates the first amendment on its face. The court reached the same conclusion regarding 14-2(a)(1) in a different case presenting different facts the same day in Illinois v. Clark, No. 115766 (Ill. Mar. 20, 2014).
The State conceded that if the recording provision fails first amendment muster, the publishing provision must too fail, due to a U. S. Supreme Court decision on point. Bartnicki v. Vopper, 532 U.S. 514 (2001). In that case, "[t]he Court held that under the first amendment, the state may not bar the disclosure of information regarding a matter of public importance when the information was illegally intercepted by another party who provided it to the disclosing party. The Illinois court determined that because Melongo was in the innocent party's position due to 14-2(a)(1) being declared unconstitutional, a bar against publishing the recording subjected her to a, "naked prohibition against disclosure."
In a Chicago Tribune report on the case, Steve Schmadeke notes (link added):
The decision comes two years after a federal appeals court in Chicago found unconstitutional the law's ban on recording police officers in public. The 7th Circuit Court of Appeals ruling prohibited enforcement of that part of the law shortly before Chicago hosted the NATO summit in May 2012.
Monday, February 10, 2014
Harvard Law Review will host its Symposium 2014: Freedom of the Press this Saturday, February 15 at Harvard Law School. The Symposium's focus will be the 50th Anniversary of the landmark First Amendment case New York Times v. Sullivan. Here is the Symposium webpage.
Acknowledgement: Ronald L. K. Collins at Concurring Opinions.
Monday, July 22, 2013
We ourselves have stated thatit cannot “be questioned that the First Amendment’s protection of speech and
associational rights extends to labor union activities.” Conn. State Fed’n of Teachers v.
Bd. of Educ. Members, 538 F.2d 471, 478 (2d Cir. 1976); see also Int’l Longshoremen’s
Ass’n v. Waterfront Comm’n of N.Y. Harbor, 642 F.2d 666, 670 (2d Cir. 1981) (“The
First Amendment’s protection of the right of association extends to labor union
However, we have never articulated a standard for determining whether, and under
what circumstances, a public entity’s employment decisions violate this right to associate
in unions. With respect to a public employee’s right to associate with political parties, the
Supreme Court stated in Rutan v. Republican Party of Illinois that government employers
may not “condition hiring decisions on political belief and association . . . unless the
government has a vital interest in doing so.” 497 U.S. 62, 78 (1990); see also Branti v.
Finkel, 445 U.S. 507, 520 (1980) (holding that termination of public defenders because
they were not affiliated with Democratic Party violated First Amendment); Elrod v.
Burns, 427 U.S. 347, 372-73 (1976) (holding that public employees who alleged they
were discharged because they were not members of sheriff’s political party stated a First
Amendment claim); Keyishian v. Bd. of Regents, 385 U.S. 589, 609-10 (1967)
(invalidating state university system’s prohibition on membership in Communist Party).
The Supreme Court was concerned that the government would “wield its power to
interfere with its employees’ freedom to believe and associate,” Rutan, 497 U.S. at 76,
and noted that “conditioning public employment on the provision of support for the
favored political party ‘unquestionably inhibits protected belief and association,’” id. at
69, quoting Elrod, 427 U.S. at 359. It therefore held that hiring based on political party
affiliation was subject to strict scrutiny and must be “narrowly tailored to further vital
government interests.” Rutan, 497 U.S. at 74; see also Branti, 445 U.S. at 515-16
(requiring “an overriding interest of vital importance” to fire a public employee solely for
his private beliefs (citation and internal quotation marks omitted)).
Conditioning public employment on union membership, no less than on political
association, inhibits protected association and interferes with government employees’
freedom to associate. It is therefore subject to the same strict scrutiny, and may be done
only “in the most compelling circumstances.” Rutan, 497 U.S. at 76.
Mitchell H. Rubinstein
Tuesday, May 21, 2013
Thirty years ago in Marsh v. Chambers, 463 U.S. 783 (1983), the Supreme Court held in a divided opinion that opening legislative sessions with prayer did not violate the Establishment Clause. But can the government open such legislative sessions with prayers exclusively with one faith? The Supreme Court will decide this question next term in Town of Greece v. Galloway. Last May, the Second Circuit held in the case that the town's practice to begin council sessions with prayer exclusively of the Christian faith violated the Establishment Clause. Lyle Denniston at SCOTUSblog described the key holding in the circuit court's decision to be:
The Circuit Court stressed that it was not ruling that a local government could never open its meetings with prayers or a religious invocation, nor was it adopting a specific test that would allow prayer in theory but make it impossible in reality.
What it did rule, the Circuit Court said, was that “a legislative prayer practice that, however well-intentioned, conveys to a reasonable objective observer under the totality of the circumstances an official affiliation with a particular religion, violates the clear command of the [First Amendment's] Establishment Clause.”
It emphasized that, in the situation in Greece, New York, the overall impression of the practice was that it was dominated by Christian clergy and specific expressions of Christian beliefs, and that the town officials took no steps to try to dispel that impression.
Since the Court announced the decision to grant certiorari earlier today, the case has generated substantial buzz in the press, print and online, and promises to a significant and closely watched decision in the October 2013 term.
Saturday, April 20, 2013
An interesting Third Circuit case from earlier this month raises the question whether a lower court judge can be held in contempt for openly criticizing a higher court for reversing him in a pending case. The case is In re: Kendall, No. 11-4471 (3d Cir. April 3, 2013).
The contempt holding arises from proceedings in a murder prosecution. The case's procedural history is long, convoluted and filled with hints and allegations suggesting misrepresentations and misconduct far and wide. Of particular relevance, after some back and forth in plea negotiations between the prosecutor and the defense, the trial judge ordered the prosecutor, against the prosecutor's wishes, to follow through on an oral plea offer allowing the defendants to plead guilty to involuntary manslaughter, a lesser charge to murder.
To this the prosecutor objected by filing an application for writ of mandamus to the Virgin Islands Supreme Court. The high court granted granted that application on grounds that the government generally may unilaterally withdraw a plea offer, as the prosecutor had done in this case, and that any exception to that general rule did not apply.
The writ of mandamus, however, turned out not to be the end to the matter. Upon return to the trial court, the prosecution and defense made a plea agreement for the defendants to plead guilty to voluntary manslaughter, still a lesser charge, but a more serious one than involuntary manslaughter. The trial judge, after receiving the prosecutor's proffer supporting the plea, rejected that plea bargain and memorialized that rejection in a 31-page opinion that, among other things, characterized the Supreme Court's reasoning in issuing the mandamus as "erroneous, 'improper,' having 'no rational basis,' lacking 'merit,' and 'making no sense." The judge went on to add the opinion was 'contrary to law and all notions of justice." The judge then recused himself for a number of reasons. Ultimately, one co-defendant died before trial; the other was acquitted by a jury.
Back to the story - the Virgin Island Supreme Court, after getting wind of the 31-page opinion, charged Judge Kendall with crimnial contempt, three counts. The counts were:
- Obstructing the administration of justice by issuing the 31-page opinion critical of the Justices' writ of mandamus;
- Failing to comply with the writ of mandamus by refusing to schedule the case for trial, refusing to consider a change of venue or continuance to minimize pretrial publicity, and recusing himself to avoid complying with the writ of mandamus, and
- Misbehaving in his official transactions as an officer of the court by issuing the 31-page opinion and disobeying the writ of mandamus.
The Virgin Islands Supreme Court appointed a Special Master to preside at Judge Kendall's trial. The Special Master recommended Judge Kendall be acquitted on all counts. The Virgin Islands Supreme Court, however, rejected those recommendations and found Judge Kendall guilty on all counts.
Judge Kendall's appeal to the Third Circuit followed.
The Third Circuit agreed that Judge Kendall's comments in the 31-page opinion were speech protected by the First Amendment. In fact, the Court held that because Judge Kendall's comments were "pure speech on public issues," the opinion held, "'the highest rung of the hierarchy of First Amendment values," and is thus 'entitled to special protection.'" Such speech, the Court held, is entitled to protection from criminal punishment unless the speech, "poses a clear and present danger to the administration of justice."
Whether it is good practice for a lower court judge to be openly and caustically critical of a higher court remains an open question, perhaps, but the Third Circuit here resolves that such speech, was lacking decorum, remains First Amendment protected, except in likely rare cases where the speech "poses a clear and present danger to the administration of justice." Kendall certainly is an interesting case and a recommended read.
Thursday, April 4, 2013
Charleston Law Review is hosting a symposium on April 15, 2013, titled "In Search of A 'Grand Unified Theory': Thirty Years with the Endorsement Test." Scheduled speakers include The Honorable Sandra Day O'Connor, Associate Justice of the United States Supreme Court (ret.), who is slated to deliver the keynote address. For more, including a conference agenda and registration information, click here.
Wednesday, March 13, 2013
Monday, October 15, 2012
Doe v. Elmbrook Sch. Dist., No. 10-2922 (7th Cir. July 23, 2012) (en banc). The Seventh Circuit held that a Wisconsin school district violated students’ rights under the Establishment Clause when it held graduation ceremonies for two of its high schools at a local Christian church.
After analyzing the facts under the test established in Lemon v. Kurtzman, 403 U.S. 602 (1971), and the endorsement and coercion tests, the majority concluded that the sheer religiosity of the church ran afoul of the “primary effect” prong of Lemon, in that it created a likelihood that high school students would perceive a link between church and state, conveying a message of religious endorsement. The majority stressed that its ruling was of limited scope, and should not be read as constitutionally condemning any government use of church-owned facilities, nor “as critical of the cases permitting governmental use, in the proper context, of certain church-owned facilities.” The decision also contains a concurring and three dissenting opinions.
Wednesday, October 10, 2012
Oregon federal magistrate recommends that First Amendment free speech claim based on bus driver’s termination for Confederate flag display should proceed to trial
Webber v. First Student, Inc., No. 11-3032 (Aug. 2, 2012), is an interesting case. An Oregon U.S. Magistrate Judge has recommended that the district court should deny the motions for summary judgment filed by a school district and private contractor, and that a school bus driver should be allowed to proceed to trial with his Section 1983 First Amendment claim regarding his suspension and termination for refusing to remove a Confederate flag from display on his vehicle while parked at work. The magistrate stated there was a sufficient factual dispute that: (1) the bus driver’s employer, a private contractor, acted under color of state law under either the “compulsion” or “joint action” test; and (2) the bus driver’s free speech rights were violated under the five-part test established in Pickering v. Board of Education, 391 U.S. 563 (1968), when he was disciplined and later discharged.
Mitchell H. Rubinstein
Wednesday, September 26, 2012
The Fifth Circuit Court of Appeals Tuesday issues a 3-0 decision upholding the Texas Open Meetings Act (TOMA) over a First Amendment free speech challenge. The case is Asgeirsson v. Texas Attorney General, No. 11-50441 (5th Cir. Sep. 25, 2012).
TOMA provides that most government meetings be open to the public, and provides that violations are punishable by a $500 fine and up to six months in county jail. Asgeirsson and other municipal officials challenged this penalty as violating free speech. The appellate panel rejected the argument, finding the prohibitions against private meetings to be a permissible, content-neutral time, place or manner restriction. The court also rejected claims that the TOMA public meeting requirement is unconstitutionally overbroad or vague.
Thursday, September 20, 2012
Kiehle v. County of Courtland, ____F.3d____(2d Cir. July 2, 2012), Download Kiehle (2) is an important case and I am amazed that the court chose not to offically publish the decision. In this case, the Second Circuit affirmed the dismissal of a case where a Department of Social Services social worker was--by the employer's admission--fired for truthfully testifying in family court. The court reasoned that this was part of his job even though he was not testifying at the request of his employer. In fact, his testimony was opposite of the employer's position. I understand that the attorney handling is petitioning for reargument/en banc consideration. This is just another example how Garcetti has all but gutted First Amendment protections.
Mitchell H. Rubinstein
Saturday, September 8, 2012
In an important free speech case yesterday, the Arizona Supreme Court held that tattooing is protected free speech under the First Amendment and Arizona's state constitution. The case is Coleman v. City of Mesa, No. CV-11-0351 (September 7, 2012).
Plaintiffs in the case sued the City after being denied a permit to open a tattoo parlor. The city's controlling ordinance effectively bans certain specified uses, including tattoo parlors, unless the city council grants a permit for the use. The Supreme Court, after finding tattooing to be constitutionally protected expression, held the city's permitting scheme vested unbridled discretion in city officials and failed the First Amendment's time, place and manner test. The Court reversed the trial court's dismissal for failure to state a claim and returned the case to that court for further proceedings.
The Arizona Court considered three approaches to the issue: (1) tattooing is purely expressive activity fully protected by the First Amendment; (2) tattooing is non-expressive activity not First Amendment protected; and (3) categorization on a case-by-case basis. Notably, the Court cited a student comment, Ryan J. Walsh, Comment, Painting on a Canvass of Skin: Tattooing and the First Amendment, 78 U. Chi. L. Rev. 1063 (2011), for the third approach.
Tuesday, July 17, 2012
From The Guardian (links added):
A recent concert in Paris has proven to have fallout for Madonna who is expected to be sued by France's Front National party for screening a video with an image of right wing politician Marine Le Pen with a swastika superimposed on her face.
The public insult cause of action in France made news recently when a French court convicted a government minister of the offense in May, fining him five euros for referring to ferry operators as crooks.
Le Pen had warned Madonna against using the image in France prior to the show, so Madonna likely made a calculated risk at her show in Paris last Saturday when she defied the warning. The story, however, is another reminder that rights Americans take for granted, like the right to free speech, generally extend only as far as our borders.
Sunday, May 20, 2012
Baar v. Jefferson Cnty. Bd. of Educ., _____F.3d____ (6th Cir. Mar. 7, 2012), is an interesting case. The Sixth Circuit held that school officials who prohibited a teacher from attending meetings of a local club were entitled to qualified immunity from his suit alleging that their actions violated his First Amendment rights. The panel concluded that even though the prohibition imposed on the teacher violated his First Amendment rights, those rights were not clearly established at the time school officials decided to impose the ban.
Mitchell H. Rubinstein
Saturday, April 14, 2012
5th Circuit again determines school board members not entitled to immunity from employee retaliation claim
Juarez v. Anguilar, ____F.3d____ (5th Cir. December 22, 2011), is an interesting case. The school board members, all named defendants in a retaliation suit brought by the school district’s former chief financial officer (CFO), argue that the district court should have granted them summary judgment, as they are entitled to qualified immunity.
As it had determined in the previous decision in September 2011, the panel ruled that precedent from the Fifth Circuit as well as the Supreme Court clearly indicate that a school board’s informal actions can result in liability. This precedent was sufficient to provide the board members with fair notice that even an informal decision to retaliate against the former CFO would violate his First Amendment rights. Accordingly, found the panel, the district court did not err when it denied summary judgment on the board members; qualified immunity defense.
Mitchell H. Rubinstein
Saturday, February 25, 2012
Federal district court grants preliminary injunction ordering Missouri district to halt Internet-filter system blocking websites with positive LGBT messages
Parents, Families, and Friends of Lesbians and Gays, Inc. v. Camdenton R-III Sch. Dist., ___F. Supp.2d___(W.D. Mo. Feb. 15, 2012), is an interesting case First Amendment case. A federal lower court in Missouri granted a preliminary injunction to a group of organizations whose websites provide resources for lesbian, gay, bisexual and transgender (LGBT) youth. Specifically, the court ordered that the school district disable its internet-filter system that blocked the groups’ websites. The court concluded that the current internet filtering system constitutes viewpoint discrimination.
Mitchell H. Rubinstein
Thursday, December 1, 2011
9th holds that School Did Not Violate Teacher’s Rights By Ordering Removal Of Classroom Religious Banners
Johnson v. Poway Unified Sch. Dist., No. 10-55445 (9th Cir. Sept. 13, 2011), is an interesting case. The 9th Circuit held that a California school district did not violate a high school teacher’s free speech or equal protection rights when the school’s principal ordered the teacher to remove banners displayed in his classroom that contained religious references. In regard to the free speech claim, it concluded that the lower court had erred by applying forum analysis. The panel found that the speech issue should be analyzed in accordance with the multi-prong test established by Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, 391 U.S. 563 (1968) and its progeny.
Mitchell H. Rubinstein
Sunday, October 30, 2011
Missouri court issues preliminary injunction barring state from enforcing new teacher social networking law
Missouri State Teachers Ass’n v. State of Missouri, No. 11AC-C00553 (Cir. Ct. Mo. Aug. 24, 2010) is a very interesting state court decision out of Missouri. A Cole County Circuit Court has issued a preliminary injunction prohibiting the State of Missouri from enforcing that portion of § 162.069.4 RSMo., which states: “No teacher shall establish, maintain, or use a non-work-related internet site which allows exclusive access with a current or former student.” Finding that the breadth of the law’s coverage is “staggering” and that social networking is utilized extensively by educators, the court concluded that the law would have a chilling effect on speech. It also concluded, given the fundamental right implicated, that the “chilling effect” would be sufficiently immediate and irreparable to support the injunction.
This would have been an important decision to watch. Frankly, I am surprised it has not attracted more media attention. However, the matter has been resolved by the legislature. (See above post).
Mitchell H. Rubinstein
Wednesday, October 12, 2011
7th holds Federal appellate court holds school district did not violate Establishment Clause by conducting graduation ceremonies at local church
Doe v. Elmbrook Sch. Dist., No. 10-2922 (7th Cir. Sept. 9, 2011), is an interesting case. In a 2-1 split, the Seventh Circuit held that a school district did not violate the Establishment Clause when it held graduation ceremonies at a local Christian church. Although the district court had relied on the coercion test and the primary effect prong of the the test enunciated in Lemon v. Kurtzman, 403 U.S. 602 (1971), the majority determined that the coercion test was not an appropriate analysis here because the challenged activity is not a religious exercise. Instead, it analyzed the school district’s actions under the Lemon test.
Mitchell H. Rubinstein