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1st Amendment Interview
Friends Discuss the First Amendment.

By: KeeganTurnbough

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1st Amendment Interview - Video

The First Amendment rights of judges are a hot topic these days.

Just a few days ago, the U.S. Supreme Court heard arguments on whether states can bar judicial candidates from soliciting campaign donations without violating their speech rights.

Across the coast in California, the states highest court has decided that judges there will no longer be allowed to belong to nonprofit youth organizations that discriminate on the basis of race, sex, sexual orientation or other criteria, effectively barring membership to the Boy Scouts of America.

The group wasnt mentioned specifically by name, but the California rule was proposed last year in response to the Boy Scouts policy of excluding gays from staff and leadership roles. After hearing from scores of judges and lawyers, some of whom fiercely opposed it, the California Supreme Court on Friday voted to adopt the rule, which takes effect next year.

The U.S. Supreme Court case is about the political speech rights of judges, while the California ethics rule deals with limits on free association. But both raise the question of how much First Amendment protection should be granted to judges who have a special duty to be fair and impartial, says Harvard University constitutional scholar Noah Feldmanin acolumn for BloombergView.

Writes Mr. Feldman:

For the moment, the Supreme Court would probably uphold the California ban on judges associating with the Boy Scouts, reasoning that judges are special and that the states interest in controlling their behavior is different from its interest in regulating the Scouts.

Another feature that might conceivably matter is that state judges are also state employees. In last weeks oral argument, the question of state employment arose, with the justices asking whether it made sense for the campaigning activities of sitting state judges to be regulated differently from the campaigning activities of nonincumbent candidates for judicial office.

Yet if the Supreme Court expands the political speech rights of judges this term, it could be the beginning of the end for state laws that limit judges free association. Then we wouldnt be able to rely on the canons of judicial conduct to create the appearance of fairness. We would have to rely instead on vigilance and common sense, and choose judges who are actually fair and actually dont discriminate. Which doesnt sound so bad after all.

A spokesperson for the California Supreme Court didnt have a comment in response to Mr. Feldmans column.

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First Amendment Rights of Judges in the Spotlight

A local man was acquitted by a visiting Franklin County judge Tuesday of criminal mischief in a case that revolved around different interpretations of the First Amendment.

Eliot Kalman, 69, of Athens was arrested on Oct. 28 after being caught placing stickers advocating constitutional separation between church and state on a Church Directory sign affixed to the front of the Athens County Courthouse. Criminal mischief is a third-degree misdemeanor.

During Kalman's trial Tuesday in Athens County Municipal Court, Dale Crawford, a retired judge from Franklin County, ruled that while Kalman, a former president of the local American Civil Liberties Union chapter, has no constitutional right to deface somebody else's property, he did, technically, have a form of permission to deface the Church Directory.

"The defendant (Kalman) in this circumstance has the privilege because the county Commissioners have not taken that (privilege) away," Crawford said in his final statements. "If the county Commissioners want to limit a part of a county building to a specific use and grant it to specific improvement people, they can do so by resolution."

Crawford ruled to acquit Kalman of the criminal mischief charge before the jury could vote on the case after his defense submitted a request for a "rule 29 judgment of acquittal,"a motion a judge can make if evidence on the part of the prosecution is insufficient to sustain prosecution of the case. Crawford granted the motion, and Kalman was declared not guilty by the judge.

After the trial, Kalman was elated, if a bit shaken. "First time I've ever been arrested in my entire life, and it was scary," Kalman said, referencing his Oct. 28 arrest. "I'm relieved that it (the trial) is over. I'm glad that I wasn't found guilty. The nature of a 'directed verdict,'that's what we had... means that they (the prosecution) didn't even come close."

Kalman testified during the trial that he did in fact place the sticker on the glass of the Church Directory on Oct. 28, and his defense corroborated that he had placed similar stickers on the glass multiple times throughout 2014. His defense also provided photographic evidence of other stickers placed on the glass, most of which, Kalman said, were not his. Kalman throughout the trial maintained that he placed the stickers as a statement about the Directory being a violation of the First Amendment separation of church and state.

However, Judge Crawford said in his judgment that he was not in Athens to decide on the appropriateness of the Church Directory's placement outside of the county Courthouse.

"I'm not here to decide whether that's proper or not proper on the county building," he said. "I'll let some other person take care of that issue. It sounds a little simplistic to me."

According to testimony during the trial, the local religious group, Athens Christian Education Committee, maintains the Church Directory sign outside the Athens County Courthouse. Rita Snider, a member of ACEC who was called as a witness by city prosecutors, testified about her organization's perceived responsibilities in regard to the Church Directory, which lists numerous local churches as well as Hillel at Ohio University, a Jewish religious entity.

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Local First Amendment activist acquitted in trial involving Church Directory at courthouse

Little Hawks On Freedom of Speech: Mary
City High Little Hawk Mary Liebig, #39;18 responds to the First Amendment.

By: Kawther35

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Little Hawks On Freedom of Speech: Mary - Video

Lindsay France

Adam Liptak, Supreme Court correspondent for The New York Times, delivers a 2015 Frank Irvine Endowed Lecture (FIELS), "A New Deal for the First Amendment?"

The terrorist attack on the office of Charlie Hebdo, a satirical magazine in Paris, sparked a heated debate on the freedom of speech around the world. In America, this new dialogue was a continuation of a much longer, equally passionate debate on the First Amendment rights, one that has been taking place in the Supreme Court.

Adam Liptak, the Supreme Court correspondent for The New York Times, discussed the First Amendment in A New Deal for the First Amendment? at Cornell Law School Jan. 22.

Liptak began his talk with a 2011 Supreme Court case, Sorrell v. IMS Health Inc., which determined the legality of selling a doctors prescription information. The case was decided using the First Amendment, causing Justice Stephen Breyer to accuse the court of Lochnerism, a reference to the contentious 1905 Lochner v. New York decision based on the amendment. The Lochner case, Liptak explained, is often placed in the anti-canon of Supreme Court cases, along with other notorious decisions such as Dred Scott and Plessy v. Ferguson.

What made the Sorrell and Lochner cases so controversial, Liptak continued, is how the law was interpreted and applied. In Sorrell, prescription information was a form of speech, which could be protected, but it was also an economic activity, which could be regulated. A similar duality existed in Lochner. Reconciling this duality led to the controversy: The state legislatures tried to impose economic regulations and the contradicting court decision was dismissed as judicial activism.

Liptak mentioned another possible consideration in applying the law: If judging is, as he phrased it, weighing competing interests and putting a thumb on the scale in favor of marginalized speech, then should a deciding factor in applying the First Amendment be the relative power of the speaker? Though Liptak did not have an answer to this question, an audience member raised the possibility that a power-based consideration could lead to influential organizations, like major newspapers, being censored.

This brought Liptak to the dangers of applying the First Amendment liberally. I practiced First Amendment law for 14 years, and I drank the Kool-Aid, he said, describing his previous faith in the amendment. Over the years, many important decisions have been made using it, including allowing protestors near funerals and decriminalizing flag burning. However, he added, There is something troubling we should think about: economic regulations being struck down on the basis of free speech.

The Lochner era, which was characterized by such decisions, ended in the 1930s with the New Deal. To end our modern era of First Amendment law, Liptak suggested, a new New Deal is needed.

The lecture was presented by the Law Schools Frank Irvine Endowed Lecture Series.

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Does the First Amendment need a New Deal?