First Amendment

  • April 5, 2017
    Guest Post

    by Nat Stern, John W. & Ashley E. Frost Professor, Florida State University College of Law

    The ability of politicians to utter falsehoods with legal impunity is evident today to perhaps an unprecedented degree. Less appreciated is that the overwhelming majority of judges in America qualify as politicians in the basic sense that they are chosen through some form of popular election. In the case of candidates for judicial office, however, nearly half of states codes contain a “misrepresent clause” barring deliberately false factual statements by judicial candidates.

    The basis for this ban is understandable and even admirable. In contrast to legislators and elected executive officers, judges are expected to serve as detached and impartial arbiters of the law. Dishonest campaign tactics may then be viewed as impairing the administration of justice, tarnishing the public image of the judiciary or even revealing a disqualifying character trait. Nevertheless, the misrepresent clause—as opposed to generally applicable bans on certain kinds of dishonesty like defamation and fraud—probably violates the First Amendment. This conclusion derives mainly from the confluence of three Supreme Court doctrines: stringent protection of political speech, application of this doctrine to restrictions on judicial campaign speech and refusal to regard false expression as categorically unprotected.

    It is a commonplace that unhindered political speech is essential to self-government and therefore lies at the heart of the First Amendment. Thus, the Supreme Court has repeatedly affirmed the privileged place of political expression in the hierarchy of First Amendment freedoms. Nor has the Court left any doubt that political campaign speech falls squarely within this protection. Accordingly, the Court has subjected restrictions on political expression to rigorous scrutiny.

  • February 24, 2017
    Guest Post

    by Joseph Blocher, Professor of Law, Duke Law School

    Last week, the en banc Eleventh Circuit struck down a Florida law limiting doctors’ freedom to speak to their patients about guns. The decision in Wollschlaeger v. Governor—also known as the “Docs v. Glocks” case—is a victory for the First Amendment, and no threat to the Second.

    The American Medical Association, American Academy of Pediatrics and American Academy of Family Physicians all encourage their members to ask patients about firearms in the home, and to stress the importance of firearm safety. In 2011, based on what the court characterized as “six anecdotes” of patients complaining about doctors’ questions or comments about guns, Florida adopted the Firearms Owners’ Privacy Act, which restricted doctors’ ability to speak with their patients about firearms.

    As Eugene Volokh has explained, the law limited doctors’ ability to ask patients whether they own guns, generally forbade them to record disclosed information about gun ownership, and banned them from “unnecessarily harassing a patient about firearm ownership during an examination.”

    Each of these provisions, the Eleventh Circuit held, violates the First Amendment—even if they are not considered to be viewpoint-discriminatory, and even if evaluated under heightened rather than strict scrutiny. (The court severed and upheld a separate provision providing that doctors “may not discriminate against a patient based solely upon the patient’s exercise of the constitutional right to own and possess firearms or ammunition.”)

    Free speech advocates will find this result unsurprising, especially in light of the Supreme Court’s decision 2015 in Reed v. Town of Gilbert, which indicated a broad scope for the content-discrimination principle and the strict scrutiny that comes with it. And yet Wollschlaeger has drawn a great deal of attention, in part due to the common misperception that it presents a conflict between the First and Second Amendments.

  • February 14, 2017
    Guest Post

    by Zach Piaker

    Last week, Ari Melber, Chief Legal Correspondent at MSNBC, spoke to Columbia Law students at an event co-hosted by ACS about the unique challenges facing journalists covering the Trump administration. The current occupant of the Oval Office is reported to be a voracious consumer of cable news, which means television journalists can often speak directly to the leader of the free world—a role many are still adjusting to. Melber relayed to us his experience on the morning of Jan. 18th, when, in a Today Show segment, he fact-checked the then-president-elect’s claims of credit for domestic investments announced by General Motors and Carrier Corp., and concluded that those hiring decision had been made months, or even years, earlier.

    By 7:44 a.m., @realDonaldTrump had taken note and tweeted: “Totally biased @NBCNews went out of its way to say that the big announcement from Ford, G.M., Lockheed & others that jobs are coming back... to the U.S., but had nothing to do with TRUMP, is more FAKE NEWS. Ask top CEO's of those companies for real facts. Came back because of me!”

    Melber recalled feeling both empowered and disoriented watching the president-elect react in real time to his reporting, though he noted that it was important that journalists avoid becoming part of the story or allow it to affect their work. Presidents have often had a combative relationship with the press, but the nascent Trump administration has already demonstrated an extraordinarily loose relationship with the truth as well as an inclination to attack reporters for doing their job, deriding all unfavorable coverage as “fake news.” (For the record, other outlets corroborated Melber’s findings. Trump went on to mock the Today Show’s ratings, which of course prompted its own round of fact-checking.)

  • February 8, 2017
    Guest Post

    by April Carson. Carson is an attorney who guides nonprofits and foundations in their charitable endeavors.

    President Trump’s leaked Executive Order and the bills introduced last week in the House and Senate, represent dreadful public policy for the tax exempt community.  More importantly, this weakening of the Johnson Amendment creates a losing “risk versus reward” analysis for religious organizations.   

    Congress has consistently, and in a bipartisan fashion, supported the idea that the United States Treasury should be neutral in political affairs and therefore taxpayer subsidized 501(c)(3) organizations should not engage in partisan political activity. In 1954, under a Republican President and a Republican controlled House and Senate, then-Democratic Sen. Lyndon B. Johnson  introduced the now famous amendment to limit section 501(c)(3) organizations, which included charities and houses of worship, from supporting candidates for public office. In 1987, in another show of bipartisan support for the idea that charities and churches should not be involved in political activity, Congress added the opposition of candidates for public office to the already standing political restriction.  Since the 107th Congress, various legislative initiatives to repeal or weaken the Johnson Amendment have been attempted, but none have gained bipartisan traction. (CRS Report RL32973 and RL34447).

    The prohibition against partisan political activity is on firm legal ground. In Christian Echoes v. United States, the 10th Circuit explained that the requirements of 501 (c)(3) did not infringe upon a church's First Amendment rights to free speech or free exercise of religion, because "tax exemption is a privilege, a matter of grace rather than right," and that "withholding exemption from nonprofit corporations do not deprive Christian Echoes of its constitutionally guaranteed right of free speech," because the church "may engage in all such activities without restraint, subject, however, to withholding of the exemption or, in the alternative . . . refrain from such activities and obtain the privilege of exemption." The D.C. Circuit similarly found that the 501 (c)(3) requirements did not run afoul of the First Amendment in Branch Ministries v. Rossotti

  • February 7, 2017
    Guest Post

    by Marc D. Stern, General Counsel, AJC Global Jewish Advocacy

    It is not clear whether President Trump is proposing the wholesale repeal of the Johnson Amendment restricting the partisan activities of tax exempt not-for profits, or only as it applies to religious organizations. If the former, the proposal presents only questions of policy, there being no constitutional ban on religious voices speaking on political matters. If the latter, it is a flat out unconstitutional “naked preference” for religious speech.

    Tax exempt status (so-called 501(c)(3) status for the relevant section of the Internal Revenue Code) confers two benefits on not-for-profits. The lesser benefit: they do not pay taxes on their income; the more substantial—that donors get to deduct all (or part) of their contributions from their gross income.

    The Johnson Amendment conditions 501(c)(3) status on a beneficiary organization refraining from endorsing or opposing candidates for elective office. The ban is absolute (unlike the ban on legislative activity). The Amendment was the brainchild of then Sen. Lyndon Johnson, and served no high-minded purpose beyond shutting down right-wing organizational opposition to Sen. Johnson.

    For the most part, these restrictions are, and long have been, self-enforced by exempt organizations. Although there are borderline questions, for the most part the rules are clear and well understood. The IRS does not have the resources to enforce these restrictions, especially since enforcement would not produce revenue. Worse, enforcement inevitably would lead to changes of IRS partisanship.