First Amendment

Last year, I blogged about the Supreme Court's 5-4 decision permitting the FCC to fine broadcasters for fleeting expletives, and leaving the Second Circuit to consider remaining Constitutional matters.

On July 13, 2010, the Second Circuit found that the FCC's indecency policy is unconstitutionally vague. Fox, et al. v. FCC, __ F.3d _ (2d Cir., July 13, 2010). This result is absolutely and wonderfully stunning.

Here is among the best quotes from Fox v. FCC (be forewarned of salty language):

CRN.com today announced that "ICM Registry, the operator behind .xxx registration, announced today that the Internet Corporation for Assigned Names and Numbers (Icann) has approved the domain."

I remain as opposed to adding a .xxx domain today as I did six years ago when the Today Show interviewed me on the matter. I strongly believe that such a move will make it more likely to increase efforts unconstitutionally to censor adult entertainment, by first making the .xxx domain a voluntary venue followed by government efforts to force sexually explicit material into a .xxx domain followed by laws censoring and criminalizing material from the .xxx domain.

I missed this year's .xxx domain vote until after it took place at ICANN's recent Brussells meeting. The matter probably was addressed in advance in material that I receive from the Free Speech Coalition, but I have not been reading all the group's material, as it arrives to me in the mix of Internet information overload.

By Jon Katz, a criminal defense and DWI defense lawyer practicing in Fairfax County, Virginia, Montgomery County, Maryland and beyond. 301-495-7755. http://katzjustice.com.

Thanks to a listserv member for posting this opinion article by Josh Gerstein in today's Politico that paints Elena Kagan as a potentially substantial risk to the First Amendment when it comes to adult entertainment.

The First Amendment gets severely damaged when First Amendment exceptions are made for adult entertainment. However, Republican opponents of Kagan are unlikely to raise this above issue, because many in their morally conservative constituency want to censor adult entertainment. I doubt many or any Senate Democrats will complain much about this, in order to maintain party unity.

The information in this article comes to me on the eve of Kagan's confirmation hearings. I have been zealously defending First Amendment rights for all, including adult entertainment, for over a decade. I will try to look independently into the matter further and soon.

By Jon Katz, a criminal defense and DWI defense lawyer practicing in Fairfax County, Virginia, Montgomery County, Maryland and beyond. 301-495-7755. http://katzjustice.com.

ADDENDUM I: The Library of Congress has an extensive linked list of Elena Kagan's writings.

Here are some of Ms. Kagan's articles that I will review to obtain further insight into her views on free speech and free expression:

- Regulation of Hate Speech and Pornography after R. A. V. , 60 U. CHI. L. REV. 873 (1993).

- A Libel Story: Sullivan Then and Now, 18 LAW & SOC. INQUIRY 197 (1993).

 - The Changing Faces of First Amendment Neutrality: R.A.V. v St. Paul, Rust v Sullivan, and the Problem of Content-Based Underinclusion, Author(s): Elena Kagan, Source: The Supreme Court Review, Vol. 1992 (1992), pp. 29-77, Published by: The University of Chicago Press, Stable URL: http://www.jstor.org/stable/3109667. 

- When a Speech Code Is a Speech Code: The Stanford Policy and the Theory of Incidental Restraints, 29 U.C. DAVIS L. REV. 957 (1995-1996).

- Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine, 63 U. CHI. L. REV. 413 (1996).

ADDENDUM II: Here are some more links relevant to Elena Kagan, the First Amendment, and her biography beyond the First Amendment:

- Here are biographical links about Ms. Kagan.

- Last month, Eugene Volokh briefly addressed Ms. Kagan as a scholar.

- Here is a short biography by Tom Goldstein from May 2010.

- In early 2009, when Kagan was a solicitor general nominee, the First Amendment Center's David Hudson claimed that Kagan had an impressive First Amendment resume.

- Here is a St. Petersburg Times article on Kagan's law review articles.

 Bill of Rights (From public domain.)

Merely because the Supreme Court's right wing votes in the majority, I do not automatically oppose the opinion or the result. I sided with the rightwingers who gave some teeth to the Second Amendment in Heller, and expect I will agree with the majority outcome by the rightwingers in Citizens United v. FEC once I get around to reading the whole opinion. Let us also remember that one of the justices, Scalia, whom I have wished off the bench since the 1980's still brought us the marvelous Melendez-Diaz opinion which followed his marvelous Crawford opinion.

Today we have the rightwingers plus Justice Kennedy, by now a swing vote on so many civil liberties issues, striking down the Ninth Circuit's injunction against the federal government's cynical swap of federal park land to the Veterans of Foreign Wars, to try to say that their decades-old cross honoring World War I-dead is on private property and thus exempt from the First Amendment's Establishment Clause. Salazar v. Buono, __ U.S. _ (April 28, 2010).

The composition of the Supreme Court's voters cannot determine whether I agree with an opinion from the Court. I will read the opinion first, not only for its First Amendment discussion -- including tensions between the Establishment Clause and the First Amendment's free speech clause -- but also for its discussion about circumstances that permit courts to revisit whether to keep permanent injunctions permanent, and about standing to sue the government for alleged civil liberties violations that are not targeted specifically at the suing party.

The FART acronym also is found with Switzerland's buses and trains that are part of Ferrovie autolinee regionali ticinesi.

Leave it to some listserv members to keep the day all the more lively.

A fellow lawyer posted this NPR link explaining how strategic lawsuit against public participation ("SLAPP") was actually a contest runner-up to the alternative description of First Amendment repression torts ("FART").

FART seems more appropriate, because libel suits threaten to stink up the First Amendment. 

A real tension exists between the First Amendment and the Constitution's protections of intellectual property.

Art. I, § 8 of the Constitution empowers Congress to "promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."

The First Amendment provides that "Congress shall make no law abridging the freedom of speech..."

In 1992, federal trial Judge Pierre Leval recognized, as follows, the tension between the First Amendment intellectual property protections:

"Even if there was some likelihood of confusion, I would still conclude that New York's cover did not violate Yankee's trademark rights. This is because the First Amendment confers a measure of protection for the unauthorized use of trademarks when that use is a part of the expression of a communicative message.

"Because the trademark law regulates the use of words, pictures, and other symbols, it can conflict with values protected by the First Amendment. The grant to  one person of the exclusive right to use a set of words or symbols in trade can collide with the free speech rights of others. When another's trademark (or a confusingly similar mark) is used without permission for the purpose of source identification, the trademark law generally prevails over the First Amendment. Free speech rights do not extend to labelling or advertising products in a manner that conflicts with the trademark rights of others. In these circumstances, the exclusive right guaranteed by the trademark law is generally superior to the general free speech rights of others. See Rogers v. Grimaldi, 875 F.2d 994, 999 (2d Cir. 1989).

"However, when unauthorized use of another's mark is part of a communicative message and not a source identifier, the First Amendment is implicated in opposition to the trademark right. In recognition of this potential conflict, the Second Circuit has construed the Lanham Act narrowly when the unauthorized use of the trademark is for the purpose of a communicative message, rather than identification of product origin. Thus, where the unauthorized use of a trademark is for expressive purposes of comedy, parody, allusion, criticism, news reporting, and commentary, the law requires a balancing of the rights of the trademark owner against the interests of free speech. See id., 875 F.2d at 998; Cliffs Notes, 886 F.2d at 493-95." Yankee Publ'g, Inc. v. News Am. Publ'g, Inc., 809 F. Supp. 267, 276 (S.D.N.Y. 1992).

When people call me about copyright infringement help, I say that I will be interested in defending the alleged infriger, and not the alleged victim of copyright infringement. That is not to say that I encourage people to run roughshod on others' intellectual property. It is to say, however, that I worship at the altar of the First Amendment, and believe that if the First Amendment is to have sufficient meaning, it is more important to overprotect free expression than to underprotect it.

In the foregoing regard, when defending against a copyright infringement lawsuit -- as with defending against all lawsuits -- it is critical to analyze arguments for dismissing the lawsuit on procedural grounds. The Supreme Court on March 2, 2010, addressed the extent to which courts may consider copyright infringement lawsuits filed by people who have not registered their intellectual property with the federal government. From my initial reading of the opinion, the Court refused to permit non-registration as an automatic bar to suing alleged copyright infringers. The opinion goes into much greater detail than that, here. Reed Elsevier v. Muchnik, __ U.S. _ (March 2, 2010).

Sometimes courts wrongly underprotect students' First Amendment rights. Of course, as to private schools, the First Amendment is not even implicated to those who run such schools.

Sometimes courts get it right, as with last week’s denial of a dismissal to a civil defendant/ high school principal for disciplining a student for posting a Facebook page with more than unflattering comments about one of the teachers at the school. Evans v. Bayer, __ F.Supp.2d _ (S.D. FL, Feb. 12, 2010).  

In Evans, high school student Evans never used school property to produce nor display the Facebook page, and actually had the Facebook page removed before the school administration ever saw it.

Suffice it to say, last Friday, a federal magistrate judge made an excellent decision to refuse dismissal of this suit, in which Evans seeks relief against principal Bayer. Here are links to this case:

- The court order denying full dismissal of the case.  

- Evans’s court complaint in the case.

- Bayer’s failed motion to dismiss the case.   

- Evans’s opposition to Bayer’s opposition motion. Jon Katz

ADDENDUM I: Thanks to a listserv member for circulating an article on this Evans case.

ADDENDUM II: Following is some particularly noteworthy language from the foregoing Evan case:

Is escorting constitutionally protected? Before courts can reach that question, a definition of escorting is needed. As it turns out, the definition of an “escort” runs the gamut from a dinner and conversational companion who provides no touching nor erotic services, to massages, to private partially-nude and fully-nude stripteases, to erotic direct physical contact running from erotic massages to more than that.

For escorts who provide stripteases, they may seek some protection from U.S. Supreme Court caselaw providing some First Amendment protection for erotic/exotic dancing. City of Erie v. Pap's A.M., 529 U.S. 277, 120 S. Ct. 1382 (2000). However, even the foregoing Erie case provides governments with a roadmap to require exotic dancers to wear pasties and g-strings. Moreover, the U.S. Supreme Court permits governments to try to zone adult entertainment to specific locations, and such zoning laws may not be amenable to escorts who provide outcall services. Los Angeles v. Alameda Books, Inc., 535 U.S. 425  (2002).

Thanks to a colleague for recently referencing a 1988 Ninth Circuit case that gives little to no First Amendment protection for escorts against government regulation. IDK, Inc. v. County of Clark, 836 F.2d 1185 (9^th Cir. 1988). IDK’s 2-1 panel majority held:

“The county's regulation governing the licensing and operation of escort services neither reaches a substantial amount of activity protected by the freedom of expressive association nor appears vague in all possible applications. Therefore, the escort service's facial challenge fails. We emphasize that our holding does not mean that the regulation is incapable of unconstitutional application in particular situations and does not immunize the regulation from challenges to its application. Facial invalidation is "strong medicine" which should be used "sparingly and only as a last resort." Broadrick [v. Oklahoma], 413 U.S. [601] at 613 [(1973)]. We conclude that this regulation does not reach a sufficient amount of the activities protected by the Constitution to justify a dose of that medicine.”

IDK, Inc., 836 F.2d at 1198.

Dissenting Judge Reinhardt takes a better approach, concluding:

“The Clark County regulation requires that licenses be obtained for the exercise of first amendment associational rights, and gives licensing officials broad discretion to grant or withhold such licenses. However, it fails to meet the strict standards that the first amendment imposes. It is written in terms that invite arbitrary and discriminatory enforcement. It is not the least restrictive means of achieving the county's goals, and it encompasses associations that are unrelated to those goals. It is "unconstitutionally vague because it subjects the exercise of the right of assembly to an unascertainable standard, and unconstitutionally broad because it authorizes the punishment of constitutionally protected conduct." Coates [v. Cincinnati], 402 U.S. [611] at 614 [(1971)]. For these reasons, I respectfully dissent from the majority's decision.”

IDK, Inc., 836 F.2d at 1206. Jon Katz 

The Internet is abuzz about Citizens United v. FEC. For the First Amendment defense side of my law practice -- and as a concerned person -- Citizens United is a critical opinion for me to read and digest, all 183 pages of the case, which covers Chief Justice Roberts's opinion, two concurring opinions (by Justices Scalia and Thomas), and Justice Stevens's opinion (joined by Justices Ginsburg, Breyer, and Sotomayor) that partially concurs and objects.

As an advocate for erring on the side of providing too much free expression protection than too little, I expect I will be on the side of the Supreme Court's majority that is in opposition to Justice Stevens's opinion. Even if the opinion will favor Republican candidates and more "mainstream"-sounding candidates, the First Amendment means little if it is not given full protection. As to those who wish to give less First Amendment protetion to corporations than to individuals, I see no such limitations in the language of the First Amendment. Moreover, when corporate First Amendment rights are watered down, damage to individuals' First Amendment rights will be simultaneous and consecutive to such damage to corporations' free expression rights.

 Bill of Rights. (From the public domain.)

Last week, a Chicago federal trial judge extended protection beyond libel suits to listserv operators, online bulletin board operators, and bloggers for third-party postings concerning erotic services, even where those postings might be thinly-veiled or even non-veiled ads for prostitution:

 Bill of Rights. (From the public domain.)

Nearly a decade ago, I added adult entertainment to my law practice. Such representation is a great way to defend the First Amendment, and can include criminal defense, as well.

Litigating against adult entertainment zoning and licensing laws can be like a cat-and-mouse game, pitting businesses against censorious municipalities, seeing which businesses will cave rather than financing expensive litigation and, sometimes, expert witness fees, getting significantly different outcomes depending on the prevailing appellate circuit, and witnessing often sharply-divided Supreme Court opinions.

As with criminal defense, even after a battle defeat against adult entertainment laws, I keep persevering, knowing that critical victories are on the horizon. In that regard, congratulations to the legal team that obtained good First Amendment headway in the Seventh Circuit last month in Annex Books v. City of Indianapolis, __ F.3d _ (7th Cir., Sept. 3, 2009).

Annex Books rejects the tired efforts of so many municipalities to rely on old, junk science "studies" connecting adult entertainment with everything from reduced property values to crime to the bubonic plague. Interpreting Los Angeles v. Alameda Books, 535 U.S. 425 (2002), Annex Books says in relevant part:

For a week and a half in October 2007, my life was consumed with my defense of the Westboro Baptist Church (WBC) and its pastor before a Maryland federal jury against charges of intentional infliction of emotional distress and intrusion upon seclusion. Each day, I drove to the heart of Baltimore/Charm City for this trial, not once getting the time to enjoy the city and its Bromo Seltzer tower, except for the last day, during lunch while the jury deliberated.

The jury socked the defendants with a multimillion-dollar verdict. The defendants appealed, with Margie Phelps representing the defendants/appellants in the Fourth Circuit, and with an amicus lineup behind them of the ACLU and the Thomas Jefferson Center for the Protection of Free Expression. Oral argument was held December 2008.

Months passed. The waiting became worth it with a hands-down total reversal today by the Fourth Circuit that bars a retrial. Albert Snyder v. Fred Phelps, Sr., et al., __ F.3d _ (4th Cir., Sept. 24, 2009).

If appellee Albert Snyder seeks en banc review, I doubt he will get far. For one thing, the Federal Rules of Appellate procedure require a petition for such review to establish that "the panel decision conflicts with a decision of the United States Supreme Court or of the court to which the petition is addressed ... and consideration by the full court is therefore necessary to secure and maintain uniformity of the court’s decisions; or ... the proceeding involves one or more questions of exceptional importance..." Fed. R. App. P. 35(b). For another thing, the appellate panel's opinion -- and the concurring opinon, as well -- provide compelling grounds why the trial judge should never have allowed this case to go to jury delberations, and it seems doubtful that the full court will disturb the hands-down reversal of the trial court.

I also doubt the Supreme Court will grant certiorari review, if a petition is even filed by Albert Snyder, the appellee. This case was filed in federal court as a diversity jurisdiction case. I doubt that the Supreme Court will see any split in the federal circuits or in the state appellate courts that justifies cert. review, nor any other compelling reason to grant such review.  For one thing, WBC's approach to demonstrating is in many ways one of the kind, and has not gotten to enough appellate decisions yet to make the Supreme Court see a circuit split nor to want to accept cert.

Protecting free expression often requires defending dark and/or controversial views and actions. It includes defending against cross burning statutes, defending the right of neo-nazis to march in Skokie, and defending the rights of the adult entertainment industry, As the American Civil Liberties Union's website proclaims: "It is easy to defend freedom of speech when the message is something many people find at least reasonable. But the defense of freedom of speech is most critical when the message is one most people find repulsive. That was true when the Nazis marched in Skokie. It remains true today."

Today's appellate victory for the Westboro Baptist Church is a huge victory for the First Amendment and Constitution, and, thus, for all of us.

On September 18, the D.C. Circuit struck down new F.E.C. rules limiting "how non-profits may spend and raise money to advance their preferred policy positions and candidates." Emily's List v. F.E.C., _ F.3d _ (Sept. 18, 2009).

Praised be and long live the First Amendment.