Speech and expression

  • November 8, 2010
    Guest Post

    By David Cole, a professor at Georgetown University Law Center, and counsel to several charities and foundations objecting to expansion of the "material support" statute.
    Last summer, the Supreme Court ruled that the First Amendment did not protect speech advocating peace and human rights if expressed to, or in conjunction with, a foreign group that the United States has designated "terrorist." The Court's decision in Holder v. Humanitarian Law Project employed reasoning that could have broad implications for First Amendment freedoms generally, as it held that the government's interest in denying "legitimacy" to a proscribed organization was a "compelling interest" that justified a content-based law criminalizing speech urging only lawful, nonviolent conduct.

    But two cases now pending in federal courts of appeals threaten to expand still further the reach of laws banning "material support" -- to prohibit aid even to organizations that have never been "designated" as terrorist or otherwise proscribed by the government. Their resolution will be the next front in the struggle to protect civil liberties from the mandate to suppress support for terrorism. They threaten to expand the law far beyond the already broad reach the Supreme Court endorsed in Humanitarian Law Project, and to chill the legitimate humanitarian aid activities of countless charities and foundations across the United States.

    In the first case, United States v. El Mezain, pending in the U.S. Court of Appeals for the Fifth Circuit, a federal judge ruled that individuals can be held criminally liable under the "material support" statute not only for supporting groups the government has formally designated and placed on an official list, but also for supporting non-designated groups, not on any government lists, if the government later proves that the non-designated group was linked to a designated group. The court required no showing that the donor knew or even should have known that the non-designated group was in any way connected to a proscribed organization.

    If this decision is upheld, any charity that provides aid or does work in conflict-ridden regions around the world will be vulnerable to prosecution. Even if the charity engages in due diligence, carefully checks the government's lists of proscribed groups and individuals, and scrupulously avoids funding anyone on the list, it could still be prosecuted. Under this view of the law, there is literally nothing a charity can do to ensure that it will not be prosecuted - short of exiting the field altogether. The decision has such sweeping ramifications that the defendants' appeal has been supported by an amicus brief from a wide variety of charities, foundations, and non-governmental organizations - including the Council on Foundations, which represents 1,750 U.S.-based foundations; the Carter Center, founded by former President Jimmy Carter; the American Friends Service Committee; the Rockefeller Brothers Fund; the conservative Rutherford Institute; and the bipartisan Constitution Project.

  • November 2, 2010
    Guest Post

    By Richard M. Zuckerman. Mr. Zuckerman is a litigation partner in the New York office of SNR Denton US LLP. Mr. Zuckerman was counsel for several amici curiae in Schwarzenegger v. EMA.
    Three issues permeated oral argument in the Supreme Court on whether to uphold California's law making it a crime to give or sell a violent video game like Mortal Kombat to a minor.

    The Supreme Court has long held, under the Miller/Ginsberg rule, that the First Amendment does not preclude making it a crime to give a minor non-obscene sexual material that is "harmful to minors." Should the Court also allow states to criminalize giving minors material which depicts or describes violence?

    Does the California law -- which permits parents to give violent video games to their children, but prohibits minors from purchasing those games -- interfere with or support the role of parents in deciding what is suitable for their children?

    Are video games different from movies or books that may be just as violent?

    The Court's questions showed great skepticism about California's proposal to extend Miller/Ginsberg to create a violence exception to the First Amendment, but also showed that some Justices were receptive to the notion that the law supported the role of parents, and to the notion that video games are different.

    "[I]t was always understood that freedom of speech did not include obscenity," Justice Scalia stated. "Was there any indication that anybody thought, when the First Amendment was adopted, that there was an exception to it for speech regarding violence? Anybody?"

    Justice Sotomayor asked, "where is the tradition of regulating violence?"

    Justice Kennedy expressed a concern about the lack of consensus on what depictions of violence were "harmful to minors." Kennedy said, "Sex and violence have both been around a long time, but there is a societal consensus about what's offensive for sexual material and there are judicial discussions on it. ... But you are asking us to go into an entirely new area where there is no consensus, no judicial opinions."

  • October 22, 2010
    Education Policy
    Guest Post

    By Paul M. Secunda, an associate law professor at Marquette University Law School.
    Although the United States Supreme Court expressly decided not to weigh in on the issue in Garcetti v. Ceballos in 2006, the first major decision by an appellate court has been decided on whether or not Garcetti's holding (that there is no First Amendment protection when public employees speak pursuant to their official job duties), applies to public school teachers in the classroom.

    The decision is what I would expect from a court closely following the teachings of the Garcetti precedent: yes, Garcetti applies. In Evans-Marshall v. Bd. of Educ. of Tipp City Exempted Vill. Sch. Dist., a case involving a high school English teacher who claimed her employment was unconstitutionally terminated by an Ohio school district in retaliation for her choice of student reading selections (including Herman Hesse's Siddhartha) and teaching methods, the court (per Judge Sutton and two other Republican appointees - two appointed by Bush I, the other by Bush II) decided yesterday that:

    [T]he right to free speech protected by the First Amendment does not extend to the in-class curricular speech of teachers in primary and secondary schools made "pursuant to" their official duties.

    Without doing any legal analysis, just wrap your mind around that statement for a second.

    The people we entrust with teaching our children how to think, read, write, behave, become citizens, etc., have no ability, zero, to say what they wish in carrying out this crucial exercise of representative government. Now don't get me wrong, I understand that such environments require some discretion and decorum so that young impressionable minds are handled carefully, but to say that there is NO First Amendment right is absurd. At the very least, whatever interests the school district has should be balanced against the speech rights of the teacher - the holding in Pickering v. Bd. of Education - that makes much more sense, no?

    And I don't want to hear about the floodgate of litigation that will ensue if we permit such balancing. Balancing in this regard has been the norm since the Pickering case in 1968, and I have not seen a tidal wave of such cases overwhelm the federal courts yet (partly because it is so difficult to win these cases).

    But think about it for a second now from a policy perspective - what incentives are being established ex ante through this legal rule. At least two that trouble me. First, if you know that you speak outside of the school (say to the newspaper like Mr. Pickering himself did way back when), you are clearly protected in your speech to speak on matters of public concern. That means that public school teachers now have an incentive to air their dirty laundry in public rather than seek resolution within their schools or with the school board. That makes no sense.

  • October 6, 2010
    Guest Post

    By Jamie Raskin, a professor of constitutional law and the First Amendment at American University's Washington College of Law and a Democratic State Senator in Maryland serving on the Senate Judicial Proceedings Committee.
    First Amendment principles are best tested at the extremes, which is why the history of free speech jurisprudence is filled with passionate extremists of all stripes: zealots, dissidents, visionary conscientious objectors, and fanatical bigots. Where would the freedom of expression be without reviled anti-war socialist and anarchist agitators, Klan propagandists and weekend fascists, recalcitrant Jehovah's Witnesses, civilly disobedient civil rights protesters, anti-abortion fanatics, flag-burners from the Revolutionary Communist Youth Brigade, narcissistic capitalist pornographers, and middle-school Quaker peace activists who refuse to take off their black armbands?

    Into this schizophrenic pantheon of racist sinners, ideological firebrands and revolutionary saints strides now the appalling Reverend Fred Phelps, whose ideologically inbred Westboro Baptist Church has made it a hobby to travel all over America picketing at military funerals and broadcasting a weird mix of homophobia and anti-Catholic, anti-Jewish and anti-American propaganda. The signs carried by forlorn members of the Phelps family say: "Fags Doom Nations," "God Hates the USA/Thank God for 9/11," "Pope in Hell," "Fag Troops," "Semper Fi Fags," "Thank God for Dead Soldiers," "Priests Rape Boys," and "God Hates Obama."

    It's the special effect of maniacs like the Rev. Phelps to infuriate everyone in his path, and his only real contribution to public progress may be to have antagonized both the gay and lesbian community seeking to overturn the military's "don't ask, don't tell" policy and right-wing Senators who have traditionally thought there is no place for gay people in the armed services. Perhaps the evidence of such rank religiously based homophobia will encourage these conservatives to rethink their views.

    In any event, Snyder v. Phelps provides an opportunity to restate some First Amendment essentials. Obviously people have a right to say racist, sexist, unpatriotic, stupid and homophobic things; moreover, they have a right to say them in public in a way that offends other people and gets them mad. As Justice William Brennan put it in Texas v. Johnson (1989) the flag-burning case, "If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."

    This principle applies regardless of whether the state would criminalize such speech directly or punish it through a civil tort action, which is what happened in this case when a jury awarded the family of Marine Matthew Snyder, who was killed in the line of duty, nearly $11 million in damages against Phelps for intentional infliction of emotional distress and invasion of privacy relating to his "God hates fags" picket at Snyder's funeral in Westminster, Maryland.

    The Supreme Court has repeatedly found that the First Amendment is offended when courts award civil damages against people because of their speech. That is the story of New York Times v. Sullivan (1964), where the Court stopped the Alabama judiciary from using libel suits to stifle criticism of official racism. And it is the story of Hustler v. Falwell (1988), in which the Court denied fundamentalist preacher Jerry Falwell's tort damages against Larry Flynt and Hustler magazine for intentional infliction of emotional distress when the magazine published a truly outrageous pornographic cartoon parody starring Falwell and his mother. I know people who think that there must be a legal cause of action every time they are offended, but they should recall what Lenny Bruce said: "My parents came to America to be offensive!"

  • September 16, 2010
    Lawmakers are again considering legislation aimed at outlawing videos that depict animal cruelty. In the spring, the Supreme Court ruling in U.S. v. Stevens, invalidated as a violation of the First Amendment a 1999 federal law that banned creation and disturbution of videos of animal cruelty.

    The Blog of Legal Times (BLT) reports on a hearing this week before the Senate Judiciary Committee focused on creating a new law that supposedly would not be as sweeping as the first one. The new legislation is supposedly aimed primarily at crush videos, which show animals being crushed to death by "scantily clad, high-heeled women," as described before the committee by the Humane Society of the United States' (HSUS) vice president for government affairs Nancy Perry.

    The BLT, notes that "ACLU lobbyist Michael Macleod-Ball," testified against the bill warning that although animal cruelty is illegal, but that banning such acts would still violated free speech.

    In post for the HSUS blog, the group's leader Wayne Pacelle writes that the matter of trying again to ban crush videos has "united members of Congress across the spectrum," noting that the House of Representatives has already passed a bill "to ban interstate and foreign commerce in these abhorrent videos."