Mediaboss Marketing

By Hillel ItalieThe Associated Press

NEW YORK Whenever Donald Trump fumes about "fake news" or labels the press "the enemy of the people," First Amendment scholar David L. Hudson Jr. hears echoes of other presidents but a breadth and tone that are entirely new.

Trump may not know it, but it was Thomas Jefferson who once said, "Nothing can now be believed which is seen in a newspaper," said Hudson, a law professor at Vanderbilt University.

"But what's unusual with Trump is the pattern of disparagement and condemnation of virtually the entire press corps. We've had presidents who were embittered and hated some of the press Richard Nixon comes to mind. ... But I can't think of a situation where you have this rat-a-tat attack on the press on virtually a daily basis, for the evident purpose of discrediting it."

Journalism marks its annual Sunshine Week, which draws attention to the media's role in advocating for government transparency, at an extraordinary moment in the relationship between the presidency and the press.

First Amendment advocates call the Trump administration the most hostile to the press and free expression in memory. In words and actions, they say, Trump and his administration have threatened democratic principles and the general spirit of a free society: The demonizing of the media and emphatic repetition of falsehoods. Fanciful scenarios of voter fraud and scorn for dissent. The refusal to show Trump's tax returns and the removal of information from government websites.

And in that battle with the Trump administration, the media do not have unqualified public support.

According to a recent Pew survey, nearly 90 percent of respondents favored fair and open elections while more than 80 percent value the system of government checks and balances. But around two-thirds called it vital for the media to have the right to criticize government leaders; only half of Republicans were in support. A recent Quinnipiac University poll found that Americans by a margin of 53-37 trust the media over Trump to tell the truth about important issues; among Republicans, 78 percent favored Trump.

"We're clearly in a particularly polarizing moment, although this is something we've been building to for a very long time," says Kyle Pope, editor in chief and publisher of the Columbia Journalism Review, a leading news and commentary source for journalism.

"I think one of the mistakes the press made is we became perceived as part of the establishment. And I think one of the silver linings of the moment we're in is that we have a renewed sense of what our mission is and where we stand in the pecking order, and that is on the outside, where we belong."

Hudson, ombudsman of the Newseum's First Amendment Center, says it's hard to guess whether Trump is serious or "bloviating" when he disparages free expression. He noted Trump's comments in November saying that flag burners should be jailed and wondered if the president knew such behavior was deemed protected by the Constitution (in a 1989 Supreme Court ruling supported by a justice Trump says he admires, the late Antonin Scalia).

Hudson also worries about a range of possible trends, notably the withholding of information and a general culture of secrecy that could "close a lot of doors." But he did have praise for Trump's pick to replace Scalia on the court, Neil Gorsuch, saying that he has "showed sensitivity" to First Amendment issues. And free speech advocates say the press, at least on legal issues, is well positioned to withstand Trump.

"We have a really robust First Amendment and have a lot of protections in place," says Kelly McBride, vice president of The Poynter Institute, a nonprofit journalism education center based in St. Petersburg, Florida. "That doesn't mean that attempts won't be made. But when you compare our country to what journalists face around the world, I still think the U.S. is one of the safest places for a journalist to criticize the government."

The First Amendment, which states in part that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press," is far broader and more uniquely American than when ratified in 1791.

At the time, free expression was based on the legal writings of Britain's Sir William Blackstone. The First Amendment protected against prior restraint, but not against lawsuits once something was spoken or published. Truth was not a defense against libel and the burden of proof was on the defendant, not the plaintiff. And the Bill of Rights applied to the federal government, but not to individual states, which could legislate as they pleased.

The most important breakthrough of recent times, and the foundation for many protections now, came with the New York Times Co. v. Sullivan case of 1964.

The Times had printed an advertisement in 1960 by supporters of the Rev. Martin Luther King Jr. that noted King had been arrested numerous times and condemned "Southern violators of the Constitution." The public safety commissioner of Montgomery, Alabama, L. B. Sullivan sued for libel. He was not mentioned by name in the ad, but he claimed that allegations against the police also defamed him. After a state court awarded Sullivan $500,000, the Times appealed to the Supreme Court.

Some information in the ad was indeed wrong, such as the number of times King was arrested, but the Supreme Court decided unanimously for the Times. In words still widely quoted, Justice William Brennan wrote that "debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." He added that a libel plaintiff must prove "that the statement was made ... with knowledge that it was false or with reckless disregard of whether it was false or not."

"It was breathtakingly new," First Amendment attorney Floyd Abrams said of Brennan's ruling. "It was an extraordinary step the court was taking."

But freedom of speech has long been championed more in theory than in reality. Abraham Lincoln's administration shut down hundreds of newspapers during the Civil War. Woodrow Wilson championed the people's "indisputable right to criticize their own public officials," but also signed legislation during World War I making it a crime to "utter, print, write, or publish" anything "disloyal" or "profane" about the federal government. During the administration of President Barack Obama, who had taught constitutional law at the University of Chicago, the Wilson-era Espionage Act was used to obtain emails and phone records of reporters and threaten James Risen of The New York Times with jail.

Predicting what Trump might do is as difficult as following his views on many issues. He often changes his mind, and contradicts himself.

During the campaign last year, he spoke of changing the libel laws to make it easier to sue the media. But shortly after the election, he seemed to reverse himself. He has said he is a "tremendous believer of the freedom of the press," but has worried that "Our press is allowed to say whatever they want and get away with it."

Trump's disparagement of the media has been contradicted by high officials in his administration. Secretary of Defense James Mattis said recently that he did not have "any issues with the press." Vice President Mike Pence was an Indiana congressman when he helped sponsor legislation (which never passed) in 2005 that would protect reporters from being imprisoned by federal courts. In early March, he spoke at a prominent gathering of Washington journalists, the Gridiron Club and Foundation dinner.

"Be assured that while we will have our differences and I promise the members of the Fourth Estate that you will almost always know when we have them President Trump and I support the freedom of the press enshrined in the First Amendment," he said, while adding that "too often stories make page one and drive news with just too little respect for the people who are affected or involved."

See the original post:
'Polarizing moment' for the First Amendment - Rockford Register Star

Jeff Malachowski Daily News Staff @JMalachowskiMW

The First Amendment is the foundation of the country, but some locals say Americans need more knowledge and a better understanding of their First Amendment rights.

The First Amendment ensures that Congress shall pass no law prohibiting freedom of speech, infringement of the press or the right of people to peacefully assemble.

"Peacefully" is the word that sticks out in Dave Fleckners mind when he reads the First Amendment. The Natick resident cited recent riots and demonstrations where protesters have blocked streets, looted stores and destroyed buildings as examples of Americans abusing their First Amendment right to peacefully assemble.

They read into them what they want, he said at the Natick Farmers Market on Saturday. Its gone a bit too far. Its the same with freedom of speech. That doesnt mean you can take violent action if they dont agree with you.

Debra Sayre, also of Natick, stressed that the First Amendment allows Americans to speak their mind and be their own person, but said some protesters are looking to cause trouble at rallies instead of exercising their First Amendment rights.

I think there are people who look for rallies to cause mayhem, she said.

Fleckner said less than one percent of schools across the country teach civics and called on Americans to have a better knowledge of the First Amendment at a younger age.

People need to learn about it, he said. They dont learn them anymore.

Rich Whalen agreed every child should take civics in grammar school to learn about the amendments. He called the First Amendment the backbone of the country.

Whalen said the right to peacefully assemble is a privilege many countries dont have that Americans should be thankful for.

It has to be respected and enforced, said the Natick resident. Its what makes this country strong.

Jeff Malachowski can be reached at 508-490-7466 or jmalachowski@wickedlocal.com. Follow him on Twitter @JmalachowskiMW.

See more here:
More First Amendment knowledge needed some locals say - Wicked Local West Roxbury

Introduction

On the 2016 campaign trail, then-candidate Donald Trump promised he would pick a Supreme Court nominee in the mold of the late Justice Antonin Scalia. To this end, President Trump narrowed his candidate shortlist to three federal appellate judges who had the approval of the Heritage Foundation and Federalist Society, 1Open this footnote Close this footnote 1 Ed Kilgore, Trumps Supreme Court Pick Is Due Next Week, With 3 Conservatives Still in the Running, N.Y. Mag. (Jan. 24, 2017, 3:04 PM), http://nymag.com/daily/intelligencer/2017/01/trumps-scotus-short-list-down-to-3-conservatives.html. Open this footnote Close and whom the press perceived as conservative. 2Open this footnote Close this footnote 2 See, e.g., id. Open this footnote Close Of the candidates, several scholars and commentators labeled Judge Neil M. Gorsuch of the Tenth Circuit the judge whose jurisprudence most closely tracks Justice Scalias. 3Open this footnote Close this footnote 3 See Oliver Roeder & Harry Enten, Trump Picks Neil Gorsuch, A Scalia Clone, for the Supreme Court, FiveThirtyEight (Jan. 31, 2017, 8:04 PM), http://53eig.ht/2jSTQAs. Open this footnote Close Indeed, several journalists and scholars argued Judge Gorsuch could prove to be significantly more conservative than the late Justice. 4Open this footnote Close this footnote 4 See Alicia Parlapiano & Karen Yourish, Where Neil Gorsuch Would Fit on the Supreme Court, N.Y. Times, https://nyti.ms/2jSTKsD (last updated Feb. 1, 2017). Open this footnote Close

We argue that Judge Gorsuchs characterization as a more conservative Justice Scaliahowever true it may be as a general matteris not particularly helpful in understanding the role a potential Justice Gorsuch would play in the field of free expression. In broad strokes, Judge Gorsuchs opinions in key First Amendment expression cases have fallen, like Justice Scalias, within the mainstream. In the same vein as Justice Scalias frequent votes with more liberal Justicesoften as part of large majoritiesin free expression cases, 5Open this footnote Close this footnote 5 See, e.g., Snyder v. Phelps, 562 U.S. 443, 446 (2011) (8-1 decision). Open this footnote Close Judge Gorsuchs free expression opinions have been either unanimous opinions for three-judge panels or separate concurrences with unanimous judgments. 6Open this footnote Close this footnote 6 See infra Part I. Open this footnote Close Usually, these opinions have solidified protections for expression. 7Open this footnote Close this footnote 7 See infra Part I. Open this footnote Close

Significant differences remain between Judge Gorsuch and Justice Scalia. Justice Scalias trademark originalism has barely registered in Judge Gorsuchs free speech jurisprudence. 8Open this footnote Close this footnote 8 See infra Part II.A. Open this footnote Close Justice Scalia himself did not use originalism to resolve First Amendment questions as much as he might have. By one account, he used it only about 30% of the time. 9Open this footnote Close this footnote 9 Derigan Silver & Dan V. Kozlowski, The First Amendment Originalism of Justices Brennan, Scalia and Thomas, 17 Comm. L. & Poly 385, 402 (2012) (finding that only 30.4% of Justice Scalias freedom of expression opinions through the 2010 Term used originalism). Open this footnote Close But that is still a lot of casesand a lot more than Judge Gorsuchs 0%. 10Open this footnote Close this footnote 10 See infra Part II.A. Open this footnote Close Moreover, a clear minimalist thread runs through Judge Gorsuchs decisions, 11Open this footnote Close this footnote 11 See infra Part II.B. Open this footnote Close while Justice Scalia was not known for his minimalism. 12Open this footnote Close this footnote 12 See Robert Anderson IV, Measuring Meta-Doctrine: An Empirical Assessment of Judicial Minimalism in the Supreme Court, 32 Harv. J.L. & Pub. Poly 1045, 1064-71 (2009) (evaluating Justices minimalist and maximalist tendencies and finding that Justices Scalia and Thomas were maximalist outliers relative to the rest of the Court). Open this footnote Close

Ultimately, even though Judge Gorsuchs First Amendment methodology may diverge from Justice Scalias, we conclude Judge Gorsuch is unlikely to work a sea change in this area of the Courts jurisprudence.

To understand Judge Gorsuchs potential impact on free expression jurisprudence as a Justice, we must look first to his work in this area as a judge. We begin in Part I with an overview of Judge Gorsuchs published free expression opinions. In Part II, we examine Judge Gorsuchs originalism and minimalism. In Part III, we look at Judge Gorsuchs substantive vision for what types of expression the First Amendment protects.

I. Freedom of Expression Cases

Judge Gorsuch has authored five published opinions implicating First Amendment expression issues. These cases have dealt with defamation (twice); 13Open this footnote Close this footnote 13 Bustos v. A & E Television Networks, 646 F.3d 762, 762 (10th Cir. 2011); Mink v. Knox, 613 F.3d 995, 1012 (10th Cir. 2010) (Gorsuch, J., concurring). Open this footnote Close the Petition Clause, 14Open this footnote Close this footnote 14 Van Deelen v. Johnson, 497 F.3d 1151, 1153 (10th Cir. 2007). Open this footnote Close retaliation, 15Open this footnote Close this footnote 15 Casey v. W. Las Vegas Indep. Sch. Dist., 473 F.3d 1323, 1325 (10th Cir. 2007). Open this footnote Close and campaign finance. 16Open this footnote Close this footnote 16 Riddle v. Hickenlooper, 742 F.3d 922, 930 (10th Cir. 2014) (Gorsuch, J., concurring). Open this footnote Close Judge Gorsuch wrote the controlling opinion in three of these cases. In the other two, Judge Gorsuch joined the majority in the judgment but wrote separately to reject portions of the majoritys reasoning as unnecessary.

A. Defamation

Judge Gorsuch has written two notable opinions involving constitutional limits on liability for defamation. In Bustos, Judge Gorsuch addressed a prisoners defamation claim against a television network. 17Open this footnote Close this footnote 17 646 F.3d at 763. Open this footnote Close Writing for a unanimous panel, Judge Gorsuch decided Bustos on state law grounds, holding the plaintiff could not prove the statement at issue was materially false. 18Open this footnote Close this footnote 18 Id. at 767. Open this footnote Close But Judge Gorsuchs opinionwhich he listed as a significant constitutional opinion[] in his Senate Judiciary Committee questionnaire 19Open this footnote Close this footnote 19 Neil M. Gorsuch, United States Senate Committee on the Judiciary: Questionnaire for Nominee to the Supreme Court 36-37 (2017), https://www.judiciary.senate.gov/imo/media/doc/Neil%20M.%20Gorsuch%20SJQ%20(Public).pdf. Open this footnote Close highlighted the issues constitutional and historical underpinnings. 20Open this footnote Close this footnote 20 See Bustos, 646 F.3d at 763-64. Open this footnote Close Judge Gorsuch chronicled the truth defenses origins at English common law, where in a twist worthy of an award from the Circumlocution Office, truth was a defense in civil cases but an aggravating factor in criminal cases. 21Open this footnote Close this footnote 21 Id. at 763. Open this footnote Close He noted that American courts [s]ensibly adopted the English civil approach, which became a First Amendment imperative. 22Open this footnote Close this footnote 22 Id. at 764. Open this footnote Close

In the other defamation case, Mink v. Knox, 23Open this footnote Close this footnote 23 613 F.3d 995, 1012 (10th Cir. 2010) (Gorsuch, J., concurring). Open this footnote Close Judge Gorsuch wrote a concurrence in which he expressed a reluctance to extend protections for defendants too far. Thomas Mink was a university student who published online a satirical editorial column fake-written by Junius Puke, a not-so-veiled reference to a professor, Junius Peake. 24Open this footnote Close this footnote 24 Id. at 998 (majority opinion). Open this footnote Close Someone else might have brushed it off; Peake called the cops. 25Open this footnote Close this footnote 25 Id. Open this footnote Close A criminal libel investigation ensued, deputy district attorney Susan Knox issued a search warrant, the police executed it, and Mink sued. 26Open this footnote Close this footnote 26 Id. at 998-99. Open this footnote Close The district court dismissed Minks claim against Knox, holding in part that Knox was entitled to qualified immunity because it was not clearly established that the column was constitutionally protected speech. 27Open this footnote Close this footnote 27 Id. at 999. Open this footnote Close

The Tenth Circuit reversed, holding that the column was a parody and thus constitutionally protected under clearly established circuit precedent. 28Open this footnote Close this footnote 28 Id. at 1006, 1009, 1011. Open this footnote Close Judge Gorsuch concurred, wanting to avoid what he saw as unnecessary dicta defending that precedent. 29Open this footnote Close this footnote 29 Id. at 1012-13 (Gorsuch, J., concurring). Open this footnote Close

B. Right to Petition

Judge Gorsuch addressed the First Amendments Petition Clause in Van Deelen v. Johnson, where a taxpayer claimed that county officials tried to intimidate him into dropping tax assessment challenges. 30Open this footnote Close this footnote 30 497 F.3d 1151, 1153 (10th Cir. 2007). Open this footnote Close The district court dismissed the suit, holding that the tax challenge was not a matter of public concern and therefore was not constitutionally protected. 31Open this footnote Close this footnote 31 Id. Open this footnote Close Judge Gorsuch, writing for a unanimous panel, rejected the public concern limitation, explaining that the right to petition extends to matters great and small, public and private. 32Open this footnote Close this footnote 32 Id. Open this footnote Close While widely accepted, this position is not entirely uncontroversial. 33Open this footnote Close this footnote 33 See Dobbey v. Ill. Dept of Corr., 574 F.3d 443, 447 (7th Cir. 2009) (criticizing Van Deelen as exceedingly broad[]). Open this footnote Close

C. Retaliation

Judge Gorsuch addressed First Amendment retaliation claims by public employees in Casey v. West Las Vegas Independent School District, which involved a school superintendent who had been fired after pushing her school board to bring the local Head Start program into compliance with federal requirements. 34Open this footnote Close this footnote 34 473 F.3d 1323, 1325-27 (10th Cir. 2007). Open this footnote Close The Tenth Circuit addressed which of Caseys statements she had made as an employee rather than a private citizen; under the then-new Supreme Court precedent of Garcetti v. Ceballos, 35Open this footnote Close this footnote 35 547 U.S. 410, 421-22 (2006). Open this footnote Close the First Amendment does not protect the former class of statements. 36Open this footnote Close this footnote 36 Casey, 473 F.3d at 1328-29. Open this footnote Close Ultimately, Judge Gorsuch, writing for a unanimous panel, held that the portfolio of Caseys duties included advising her superiors and instructing her subordinate, but that she acted as a private citizen when she went around her superiors to complain to the state attorney general. 37Open this footnote Close this footnote 37 Id. at 1329-33. Open this footnote Close

D. Campaign Finance

Judge Gorsuch also addressed freedom of expression in his concurrence in Riddle v. Hickenlooper, although the case primarily dealt with Fourteenth Amendment campaign finance questions. 38Open this footnote Close this footnote 38 742 F.3d 922, 931-32 (10th Cir. 2014) (Gorsuch, J., concurring). Open this footnote Close Plaintiffs challenged a Colorado campaign finance law that functionally allowed major-party candidates to raise twice as much money from an individual donor in a given campaign as third-party, independent, and write-in candidates. 39Open this footnote Close this footnote 39 Id. at 924-25 (majority opinion). Open this footnote Close The panel applied a campaign finance-specific form of heightened scrutiny to strike down the statute. 40Open this footnote Close this footnote 40 Id. at 927-28. Open this footnote Close Judge Gorsuch concurred, agreeing the law was unconstitutional but noting uncertainty about the correct level of scrutiny to apply based on the Supreme Courts campaign finance jurisprudence. 41Open this footnote Close this footnote 41 Id. at 930-33 (Gorsuch, J., concurring). Open this footnote Close

II. First Amendment Style

A. First Amendment Originalism?

Judge Gorsuchs originalism has received significant attention. But it has not been evident in his free expression jurisprudence.

Judge Gorsuch did not rely on originalist analysis in any of the opinions discussed above. The closest he came was in Bustos, where he explored the truth defenses history. 42Open this footnote Close this footnote 42 See Bustos v. A & E Television Networks, 646 F.3d 762, 763-64 (10th Cir. 2011). Open this footnote Close Because the case turned on a state law question, 43Open this footnote Close this footnote 43 See id. at 767. Open this footnote Close there was not much room for originalism. The First Amendments role would have been to constrain state law had it not already been more protective than required. 44Open this footnote Close this footnote 44 Id. at 764. Open this footnote Close Accordingly, Judge Gorsuch used history only to flag the issues constitutional backdrop and to support the idea that the American defamation tort is intended to protect the plaintiffs interest in her public reputation. 45Open this footnote Close this footnote 45 See id. Open this footnote Close

More surprising is Van Deelen, 46Open this footnote Close this footnote 46 Van Deelen v. Johnson, 497 F.3d 1151 (10th Cir. 2007). Open this footnote Close which extended the right to petition without discussing its original understanding. There, the Supreme Court had not definitively resolved the First Amendment issuewhether the right contains a public concern requirementand a series of district court cases had come out the other way. 47Open this footnote Close this footnote 47 See id. at 1156-58. Open this footnote Close Yet Judge Gorsuchs only historical reference came after he decided that question. 48Open this footnote Close this footnote 48 See id. at 1158. Open this footnote Close He argued that the right had been clearly established since the Boston Tea Party, defeating qualified immunity. 49Open this footnote Close this footnote 49 Id. Open this footnote Close And that was it. Indeed, Judge Gorsuch made his key analytical moves on the First Amendment issue without citation. 50Open this footnote Close this footnote 50 See id. at 1156. Open this footnote Close

Even if Judge Gorsuch felt the issue was open and shut, his failure to at least give lip service to originalism is surprising. There is certainly room for an originalist analysis of the Petition Clause, as evidenced by the Justices dueling analyses in Borough of Duryea v. Guarnieri. 51Open this footnote Close this footnote 51 564 U.S. 379 (2011). Open this footnote Close There, writing for a seven-Justice majority, Justice Kennedy conducted an originalist analysis of the right to petition beginning with its origins in the Magna Carta. 52Open this footnote Close this footnote 52 Id. at 394-99. Open this footnote Close Justice Kennedy found that a public concern requirement applies to public employees but hedged on whether it extends beyond the employment context. 53Open this footnote Close this footnote 53 Id. Open this footnote Close Justice Scalia, in reply, invoked originalist evidence to raise doubts about whether lawsuits are protected by the Petition Clause at all and to reject the public-concern requirement outright. 54Open this footnote Close this footnote 54 Id. at 403-07 (Scalia, J., concurring in the judgment in part and dissenting in part). Open this footnote Close Thus, Guarnieri highlights a gap between Judge Gorsuch and Justice Scalia with respect to using First Amendment originalism.

It is possible that Judge Gorsuch could use the extra maneuvering room hed have as a Justice to embrace a more originalist approach, but the First Amendment has not exactly provided fertile ground for originalism. 55Open this footnote Close this footnote 55 See Silver & Kozlowski, supra note 9, at 390-91, 423-24 (discussing the lack of originalist sources and arguing originalism fails to restrain judges in this area). Open this footnote Close And nothing in Judge Gorsuchs record suggests that he desires to revitalize First Amendment originalism.

B. Maintaining Minimalism

Throughout his free expression opinions, Judge Gorsuch has shown a consistent tendency to avoid deciding legal issues unnecessarily. His concurrences in Mink and Riddle sought a more cautious resolution to the case at hand than those provided by the majority opinions. Similarly, his majority opinion in Casey followed a fairly intuitive interpretation of Supreme Court precedent, and he took care to include language indicating the decisions limits.

The Mink panel relied on Pring, a Tenth Circuit precedent directly on point that resolved the key First Amendment issue. 56Open this footnote Close this footnote 56 Mink v. Knox, 613 F.3d 995, 1006-07 (10th Cir. 2010) (citing Pring v. Penthouse Intl, Ltd., 695 F.2d 438, 438-43 (10th Cir. 1982)). Open this footnote Close Judge Gorsuch agreed that Pring controlled but criticized the majority for offer[ing] a lengthy new defense of Pring. 57Open this footnote Close this footnote 57 Id. at 1012 (Gorsuch, J., concurring). Open this footnote Close Asserting that reasonable minds can and do differ about the soundness of [Prings] rule, he raised two potential arguments against it: (1) it might unnecessarily constitutionalize[] limitations that state tort law already imposes; and (2) it might unjustly preclude private persons from recovering for intentionally inflicted emotional distress regarding private matters, in a way the First Amendment doesnt compel. 58Open this footnote Close this footnote 58 Id. Open this footnote Close Judge Gorsuch did not necessarily endorse these arguments, but to avoid these thickets, he demurred from the panels discussion of Pring. 59Open this footnote Close this footnote 59 Id. at 1013. Open this footnote Close Indeed, the single most notable aspect of Judge Gorsuchs concurrence may be the language he borrowed from then-Judge Roberts: [I]f it is not necessary to decide more, it is necessary not to decide more. 60Open this footnote Close this footnote 60 Id. (quoting PDK Labs., Inc. v. DEA, 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J., concurring in part and concurring in the judgment)). Open this footnote Close

Judge Gorsuch also displayed his minimalism in Riddle, where the majority elected to examine a campaign finance statute under Buckley v. Valeo 61Open this footnote Close this footnote 61 424 U.S. 1 (1976). Open this footnote Close heightened scrutiny. 62Open this footnote Close this footnote 62 Riddle v. Hickenlooper, 742 F.3d 922, 927-28 (10th Cir. 2014). Open this footnote Close Judge Gorsuch concurred to observe that while the law was unconstitutional, the appropriate scrutiny tier was uncertain. 63Open this footnote Close this footnote 63 Id. at 930-32 (Gorsuch, J., concurring). Open this footnote Close Like in Mink, Judge Gorsuch noted the lack of definitive Supreme Court guidance on the issue. 64Open this footnote Close this footnote 64 Id. at 931. Open this footnote Close Recognizing the difficulty of the scrutiny question, Judge Gorsuch pointed out that the court neednt resolve it. 65Open this footnote Close this footnote 65 Id. at 932. Open this footnote Close Colorados law failed even under the more relaxed Buckley standard: Buckley requires that contribution limits be designed to ward off corruption, but the challenged law was not. 66Open this footnote Close this footnote 66 Id. at 932-33 (citing Buckley, 424 U.S. at 25-29). Open this footnote Close Judge Gorsuch underscored the decisions narrowness by describing how an alternative regime would survive the Riddle courts reasoning. 67Open this footnote Close this footnote 67 Id. at 933. Open this footnote Close The opinion indicates Judge Gorsuchs desire both to limit the decisions scope and to clarify that the political branches retain the ability to solve the problems campaign finance regulation seeks to address.

Casey presents a different flavor of Judge Gorsuchs minimalism in that he is writing for a unanimous panel, not criticizing the breadth of his colleagues opinion. Casey was primarily concerned with resolving the new question put to courts by Garcetti: When is a government employee speaking pursuant to her official duties, rendering her speech unprotected? 68Open this footnote Close this footnote 68 Casey v. W. Las Vegas Indep. Sch. Dist., 473 F.3d 1323, 1328 (10th Cir. 2007) (citing Garcetti v. Ceballos, 547 U.S. 410, 421 (2006)). Open this footnote Close While Casey did not present the same opportunities as Mink and Riddle to avoid deciding certain legal questions, Judge Gorsuchs opinion has a minimalist hue. Importantly, he makes sure to note the limits of the decision, leaving room for other kinds of public employee whistleblowing. 69Open this footnote Close this footnote 69 Id. at 1331. Open this footnote Close

III. First Amendment Substance

Judge Gorsuchs freedom of expression opinions indicate that he is generally satisfied with the scope of First Amendment protections. While Judge Gorsuch has hinted at some areas where he may favor narrower protections than most judges and others where he may favor more expansive protections, his views occupy the mainstream.

Bustos and Mink exemplify Judge Gorsuchs cautious approach. In Bustos, Judge Gorsuch embraces the First Amendments firm protections against tort liability while counseling judges to avoid taking those protections so far that they create libel-proof plaintiffs. 70Open this footnote Close this footnote 70 Bustos v. A & E Television Networks, 646 F.3d 762, 763-65, 769 (10th Cir. 2011). Open this footnote Close This commonsensical limitation is not the work of a judge itching to undo New York Times Co. v. Sullivan. 71Open this footnote Close this footnote 71 376 U.S. 254 (1964). Open this footnote Close

Mink is perhaps more concerning to those who favor a robust First Amendment. At first glance, Judge Gorsuchs concurrence is a benign call for judicial restraint. 72Open this footnote Close this footnote 72 See Mink v. Knox, 613 F.3d 995, 1013 (10th Cir. 2010) (Gorsuch, J., concurring). Open this footnote Close Considering, however, that all the panel did was straightforwardly apply and explain Pring, 73Open this footnote Close this footnote 73 See id. at 1004-08 (majority opinion). Open this footnote Close Judge Gorsuchs concurrence reads as a nudge toward rolling back Prings parody protections. Judge Gorsuchs stance is hardly the stuff of dystopian novels; he suggests only that private figures might sometimes be able to recover for speech on private matters. 74Open this footnote Close this footnote 74 See id. at 1012 (Gorsuch, J., concurring). Open this footnote Close This view has much in common with Justice Alitos dissent from the Courts extension of First Amendment protection to the Westboro Baptist Churchs picketing at a military funeral 75Open this footnote Close this footnote 75 See Snyder v. Phelps, 562 U.S. 443, 463-64 (2011) (Alito, J., dissenting). Open this footnote Close a case in which Justice Scalia joined all seven other Justices in the majority. 76Open this footnote Close this footnote 76 See id. at 446 (majority opinion). Open this footnote Close

Judge Gorsuch inches instead toward expanded protections in Van Deelen. His rhetoric about the liberties . . . essential to the continuity of our democratic enterprise demonstrates his deep respect for the values at stake. 77Open this footnote Close this footnote 77 Van Deelen v. Johnson, 497 F.3d 1151, 1155 (10th Cir. 2007). Open this footnote Close

Conclusion

Ultimately, we do not expect a potential Justice Gorsuch to advocate any major changes to the Courts First Amendment freedom of expression jurisprudence. Methodologically, he cannot be called a Scalia clone. 78Open this footnote Close this footnote 78 Cf. Roeder & Enten, supra note 3. Open this footnote Close Perhaps most significantly, if you were hoping for a Justice who would open up our libel laws, 79Open this footnote Close this footnote 79 See Hadas Gold, Donald Trump: Were Going to Open Up Libel Laws, Politico (Feb. 26, 2016, 2:31 PM EST), http://politi.co/1QlBCjS. Open this footnote Close Judge Gorsuch is not your man.

* J.D. Candidates, Stanford Law School, 2018.

Read the original:
Mainstream Jurisprudence and Some First Amendment Problems ... - Stanford Law Review Online

GENISIA TING / AGGIE

YES Taryn DeOilers

The ongoing battle between alt-right firebrand Milo Yiannopoulos and left-leaning university students encapsulates the national debate on whether hate speech should continue to be safeguarded in the United States. While its critical to denounce the vile sentiments Yiannopoulos belches out on campuses across America, the preservation of free speech for all individuals remains paramount to our democracy.

The exceptions are, of course, cases in which insults lurch toward explicit, deliberate threats of violence called fighting words. Otherwise, Americans can freely ridicule people based on characteristics like religion, gender and race without fear of being legally punished. Although this seems immoral, the First Amendment has existed to protect speech thats controversial, aggravating and inflammatory not speech thats comfortable, ethical and well-liked.

Its crucial to recognize that silencing even the ugliest words would set a precedent for future lawmakers for permissible censorship. Because laws can be twisted and reinterpreted as time progresses, the same legislation that strips rights from those who spew offensive rhetoric could easily revoke the protection of more moderate speech.

Most importantly, unsavory expression is merely a symptom of the underlying concern, and those who espouse it wouldnt vanish with the swipe of a pen. Concealing hate speech wouldnt eradicate the hate it would just attempt to hide the speech. We must confront the source of evil if we wish to witness true change, and how can we successfully fight what we cannot see with perfect clarity?

John Stuart Mill argues in his philosophical work On Liberty that the free exchange of ideas even despicable ones is essential to arriving at a clearer perception and livelier impression of truth [that can only be] produced by its collision with error. For all of us who detest bigotry, living in a country where love, hate, truth and falsehood are equally provided a podium can be distressing and disheartening. But as Mill declares, tolerance and reason, when given the opportunity to exhibit their veracity over ignorance, will ultimately transcend and irrevocably disprove the cowardly hate behind which fools like Yiannopoulos stand.

Written by: Taryn DeOilers tldeoilers@ucdavis.edu

NO Jazmin Garcia

Allow me to clear up what this argument isnt. This stance does not endorse the persecution of those who perpetuate hate speech, nor does it advocate censorship. It simply answers the ethical implications of tolerating hate speech and the demoralizing effects of this speech insofar that it divides and endangers people.

While adverse opinions are necessary for fruitful discussion and for understanding different points of view, hate speech normalizes antagonistic depictions of marginalized people. After all, hate speech is defined by the American Bar Association as speech that offends, threatens, or insults groups based on race, color, religion, national origin, sexual orientation, disability or other traits. Often, those who defend hate speech have some degree of privilege, so this defense does little in bridging the divide and fostering understanding between communities.

It would be fallacious to say that those who believe in protecting hate speech are hateful. But the argument hangs itself on the word speech. Were more likely to unanimously agree that vandalism and acts of violence are terrible, but when it comes to similarly spirited language, hate suddenly becomes a matter of opinion.

One does not have to look further than Milo Yiannopoulos to assess the effects of hate speech. The alt-right agitator recently fell from grace when a video of his pro-pedophilia comments resurfaced. When someone defends his constitutional right to spew racist, misogynistic, transphobic and Islamophobic speech, but draws the line at pedophilia, is the issue really about free speech? This suggests that only certain kinds of speech merit a platform.

And sadly, this type of speech demonizes the marginalized. After the election, many Muslim and Hispanic Americans have been taunted by Trump supporters telling them that their time is up.

Many of those who defend hate speech do so out of a desire to be ideologically consistent in their defense of free speech. But they dont recognize the need to tailor laws to new situations and circumstances. Progress does not come from looking to old documents. It comes from challenging authority or, in this case, language that subjugates others. Written by: Jazmin Garcia msjgarcia@ucdavis.edu

Disclaimer: The views and opinions expressed by individual columnists belong to the columnists alone and do not necessarily indicate the views and opinions held by The California Aggie.

Read more:
Double Take: Should hate speech be protected under the First Amendment? - The Aggie

Newswise Just published: FDA-Required Tobacco Product Inserts & Onserts and the First Amendment, Food and Drug Law Journal, March 2017 (pdf available upon request).

This legal analysis examines:

The FDAs regulatory authority to provide consumers with information via tobacco products and their labeling; -How actively FDA could do that within existing First Amendment constraints; and New approaches to interpreting and applying the federal Tobacco Control Act and the First Amendment.

All prescription and over the counter drugs are regulated by the FDA and come with detailed inserts, onserts, or package labeling that provides consumers with warnings, instructions for use, and other important product and product use information (e.g., how to identify harms from use so that they can be quickly identified and treated or otherwise addressed). The same should be done for tobacco products that deliver nicotine, an addictive drug, along with even larger health risks and no offsetting benefits, says author Eric N. Lindblom, JD, of the ONeill Institute for National & Global Health Law at Georgetown University Law Center. (Read more of his opinion on the ONeill Institute blog.)

Abstract: In 2012, a federal court of appeals struck down an FDA rule requiring graphic health warnings on cigarettes as violating First Amendment commercial speech protections. Tobacco product inserts and onserts can more readily avoid First Amendment constraints while delivering more extensive information to tobacco users, and can work effectively to support and encourage smoking cessation. [Inserts are small printed leaflets, typically providing product information for consumers, placed inside the product package; onserts are similar leaflets temporarily stuck to the outside of product packages that consumers can pull off,open, and read.] This paper examines FDAs authority to require effective inserts and onserts and shows how FDA could design and support them to avoid First Amendment problems. Through this process, the paper offers helpful insights regarding how key Tobacco Control Act provisions can and should be interpreted and applied to follow and promote the statutes purposes and objectives. The papers rigorous analysis of existing First Amendment case law relating to compelled commercial speech also provides useful guidance for any government efforts either to compel product disclosures or to require government messaging in or on commercial products or their advertising, whether done for remedial, purely informational, or behavior modification purposes.

About the authors: Corresponding author: Eric N. Lindblom, JD, is the Director for Tobacco Control and Food & Drug Law at the ONeill Institute for National & Global Health Law at Georgetown University Law Center, and the former Director of the Office of Policy at FDAs Center for Tobacco Products. enl27@law.georgetown.edu, 202-661-6688.

Micah L. Berman, JD, is an Assistant Professor at the College of Public Health and the Moritz College of Law at Ohio State University. berman.31@osu.edu, 614-688-1438

James F. Thrasher, PhD, MA, MS, is an Associate Professor in the Department of Health Promotion, Education & Behavior at the Arnold School of Public Health, University of South Carolina. thrasher@mailbox.sc.edu, 803-777-4862

More:
FDA-Required Tobacco Product Inserts & Onserts and the First Amendment - Newswise (press release)