Consumerist | Supreme Court: State's Restriction On Credit Card Surcharges Is A Free Speech Regulation Consumerist The U.S. Supreme Court has determined that a New York state law barring merchants from adding credit card surcharges is indeed a state regulation on businesses' free expression. However, whether that law goes so far as to violate the First Amendment is ... |
Lexington Herald Leader | Herald-Leader sues city of Lexington, alleging First Amendment violations Lexington Herald Leader The Lexington Herald-Leader has sued the city of Lexington, alleging that a new ordinance which restricts where publications can be delivered runs afoul of the First Amendment. Lexington H-L Services Inc., doing business as the Lexington ... |
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Herald-Leader sues city of Lexington, alleging First Amendment violations - Lexington Herald Leader
The state of Illinois enacted in 2013 a pretty blatantly unconstitutional law forbidding businesses engaged in (legal) medical marijuana sales or growing from contributing to political campaigns, in effect either directly or via a PAC (though only the latter was literally codified). But since candidates were also barred from accepting such contributions, the real legal effect was on direct contributions as well.
Thomas Hawk/Foter
Two Libertarian Party candidates, Claire Ball and Scott Schluter, sued over this, with the help of the Pillar of Law Institute and the Liberty Justice Center. I reported on the suit in the case of Ball v. Madigan back in June.
This week, Ball and Schluter won a victory in U.S. District Court for the Northern District of Illinois, eastern division, in a request for summary judgment for them and against Illinois. ("Madigan" is Illinois Attorney General Lisa Madigan.)
Quoting from the decision from Judge John Z. Lee, which considers the notion whether this law must face "strict scrutiny" as a possible First Amendment violation based on content, or the looser "intermediate scrutiny" applying to most campaign finance law:
By singling out medical cannabis organizations, 9-45 [the law being challenged] appears to reflect precisely...a content or viewpoint preference. Although Buckley and its progeny permit the government to regulate campaign contributions to some extent, surely the First Amendment does not give the government free rein to selectively impose contribution restrictions in a manner that discriminates based on content or viewpoint.....
9-45 fails to pass constitutional muster even under Buckley's less rigorous intermediate standard. The Court therefore need not decide whether the statute would survive the more demanding standard of strict scrutiny, if that standard were to apply.....
Since the only reasonable government purpose Judge Lee would accept, based on precedent, for these restrictions is "preventing quid pro quo corruption or its appearance," he finds Illinois failed to:
point to any legislative findings raising concerns about corruption or the appearance of corruption in the medical cannabis industry. Nor do they point to any instances of actual corruption involving any medical cannabis cultivation center or dispensary. Rather, they rely solely upon Illinois's general history of political corruption scandals....
Still, the Judge is lenient on Illinois so far, writing that that thin evidence:
nevertheless substantiate[s] Defendants' claim that the media and the public have perceived a risk of corruption relating to the medical cannabis pilot program. This is all the more true given that cannabis distribution and use were legally banned in Illinois until the passage of the Medical Cannabis Act. Although thin, such evidence is sufficient under governing law to establish an important government interest for purpose of this analysis.
But that's not enough for Illinois to win:
they must further demonstrate that 9-45 is "closely drawn" to this important government interest. For the reasons that follow, they fall short of doing so.....
Several features of 9-45 render it plainly disproportional to the government's interest in preventing quid pro quo corruption or its appearance. First, 9-45 is a disproportionate measure in that it imposes an outright ban on contributions, rather than a mere dollar limit on contribution amounts....
Defendants in this case have failed to explain why a flat prohibition is proportionate to the government's interest in avoiding the risk of actual or perceived corruption that arises when donors from the medical cannabis industry make monetary contributions to political campaigns. They assert that a wholesale ban is appropriate on the ground that medical cannabis cultivation centers and dispensaries "reap profits from the industry and require State licensure to operate" and therefore "pose the greatest risk of corruption."
But this bald assertion is little more than conjecture; Defendants offer no support for their claim that medical cannabis cultivation centers and dispensaries in fact pose a greater risk of corruption than other potential donors....
In addition, it bears noting that, without 9-45, contributions from medical cannabis cultivation centers and dispensaries would still be subject to generally applicable contribution limits that the Illinois General Assembly approved in 2009.... Under these limits, a candidate political committee may not accept contributions over $5,000 from any individual or over $10,000 from any corporation, labor organization, or association, with adjustments for inflation....
Defendants have not explained why these broadly applicable contribution limits are insufficient to prevent the risk of corruption in the medical cannabis industry...
Moreover, 9-45 is a poorly tailored means of promoting the government's interest in preventing quid pro quo corruption or its appearance because Defendants have offered no legitimate basis for singling out medical cannabis cultivation centers and dispensaries from other potential donors who also "reap profits" and "require State licensure to operate."
Judge Lee points out that past precedent Illinois tried to rely on regarding contribution restrictions on the gambling industry were distinct since in those cases actual real records of gambling-financed corruption existed.
For all those reasons, Judge Lee "concludes that 9-45 places a significant and unjustifiable burden on the rights to freedom of speech and freedom of association. Section 9-45 is therefore invalid under the First Amendment."
A nice victory for free speech and expression in the growing tangled nexus between rights regarding marijuana and existing constitutional rights.
High Point University First Lady Mariana Qubein presided over the tree dedication and turned the first shovel of soil
HIGH POINT, N.C., March 23, 2017 In the years before the American Revolution, colonists gathered at the Liberty Tree, a large elm tree in Boston that served as a rallying point for important events and speeches. High Point University joined in celebrating freedom and commemorating First Amendment Day by planting its own Liberty Tree in David R. Hayworth Park on March 22.
Students, faculty and staff gathered to plant the tree, a Jefferson elm, which now stands on campus as an enduring symbol of freedom of expression. Jon Roethling, curator of the grounds for the Mariana H. Qubein Arboretum and Botanical Gardens at HPU, selected the tree because of its historical significance. Named for founding father Thomas Jefferson, the original plant is one of several hundred American elms planted on the National Mall in Washington, D.C. This variety of elm is known for being disease resistant and fast growing.
HPU First Lady Mariana Qubein, whose vision is for the gardens to serve as an inspiration to students and the academic environment on campus, presided over the dedication and turned the first shovel of soil.
We are proud at HPU to express our joy and our freedom through the gardens and arboretum, which focus our attention on the beauty and inspiration that can be found in nature, says Qubein. The planting of a tree is a fitting tradition to serve as a reminder of the freedoms we are so blessed to have in this country.
The tree dedication was part of HPUs second annual First Amendment Day celebration, organized by the Nido R. Qubein School of Communication and supported by Lambda Pi Eta communication honor society, Phi Alpha Delta pre-law fraternity, HPUs chapter of the Society of Professional Journalists and HPUs new Speech & Debate Club.
Dr. Dean Smith, assistant professor of communication, started the event last year as part of a larger discussion on free speech and academic freedom on college campuses.
Students and staff plant a Jefferson elm as part of HPUs second annual First Amendment Day celebration, organized by the Nido R. Qubein School of Communication.
First Amendment Day originally grew out of discussions about the declining understanding of Americas First Amendment traditions, especially among young people, and it is now being recognized at dozens of campuses nationwide, says Smith. As a First Amendment scholar, I wanted HPU to be a part of that tradition, including the planting of a Liberty Tree, because of the inspiring environment the gardens create on our campus.
First Amendment Day is a fitting project for HPU because one of our largest academic programs is communication, but the celebration of freedom of expression shouldnt be limited to communication majors. It is a tradition that belongs to all of us.
In addition to the tree dedication, this years First Amendment Day included a discussion on free speech, a First Amendment Free Food Festival that required students to give up their ability to express themselves in exchange for free food, and a keynote address by Nadine Strossen, an author and former president of the American Civil Liberties Union.
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HPU Dedicates Liberty Tree for First Amendment Day - High Point University (press release) (blog)
In 1927, John Dewey wrote that the essential need of democracy, of self-government and freedom, properly understood, was "the improvement of the methods and conditions of debate, discussion and persuasion. That is the problem of the public."
That problem may well be getting worse. For years, beginning with Republic.com (2001), Cass Sunstein has issued warnings that with the advent of "The Daily Me," cyberspace entices us to filter out everything and everyone we do not wish to see and hear, thereby reducing shared experiences and opinions with which we do not agree. In #Republic, Sunstein, a former official in the Obama administration and a professor of law at Harvard, indicates that "echo chambers," "cybercascades," "conspiracy theories," and "fake news," spread to millions in seconds via the web, are producing fragmentation, political polarization, and terrorism. Ripped straight from the headlines, but informed by hard data, #Republic should command the attention of American citizens across the political spectrum.
Many of us, Sunstein points out, become more convinced we are right - and more extreme in our views - the more contact we have with like-minded people (by, for example, watching Fox News or MSNBC or getting information filtered by social media). On Facebook, efforts to debunk false beliefs are typically ignored, and at times produce an even stronger commitment.
Public policy, Sunstein maintains, has a role to play in setting a context for a more deliberative democracy. Acutely aware of the risks, he recommends a fundamentally different approach to the First Amendment. Demonstrating, quite persuasively, that "free speech" is not an absolute, he suggests that the "clear and present danger" doctrine has outlived its usefulness and ought to be replaced by an interpretation in which speech would be protected - or not - according to its content rather than its likely or actual consequences. After all, the benefits of allowing terrorist organizations to explicitly incite violence on social media might well be dwarfed by the costs.
Asked in 1787, "What have you given us?" Benjamin Franklin replied, "A republic, if you can keep it." The year 2017 may well be the right time to ask hard questions about the relationship between our choices and our freedom, and between citizens and consumers, questions about what we need to do to keep our republic.
Glenn C. Altschuler is the Thomas and Dorothy Litwin Professor of American Studies at Cornell University.
Published: March 24, 2017 12:57 PM EDT The Philadelphia Inquirer
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'#Republic': A new First Amendment in cyberspace? - Philly.com - Philly.com