Tag: First Amendment

Thrown in Jail for Surfing the Web

Lester Packingham beat a parking ticket and celebrated on his Facebook page by proclaiming, “God is good! … Praise be to GOD, WOW! Thanks JESUS!” For this post, he was sentenced to prison—because he was a registered sex offender and a North Carolina statute bans such people from accessing a wide variety of websites. (Packingham took “indecent liberties with a minor” when he was 21, receiving a suspended sentence and probation, which he had completed.)

The law is meant to prevent communications between sex offenders and minors, but it sweeps so broadly that it conflicts with basic First Amendment principles. It doesn’t even require the state to prove that the accused had contact with (or gathered information about) a minor, or intended to do so, or accessed a website for any other illicit purpose.

After the state court of appeals overturned Packingham’s conviction—finding the criminal “access” provision unconstitutional—the North Carolina Supreme Court, over vigorous dissent, reversed and reinstated the conviction and sentence. The U.S. Supreme Court took the case and now Cato, joined by the ACLU, has filed an amicus brief supporting Packingham’s position.

The North Carolina law bans access not just to what people consider to be social-media sites, but also any sites that enable some form of connection between visitors, which would include YouTube, Wikipedia, and even the New York Times. The statute is also vague, in that it covers websites that “permit” minor children to create profiles or pages—and you can’t even find out what a website “permits” without first looking at its terms of service—itself a violation of the statute. Even if the site purports to stop minors from accessing its content, it’s impossible for someone to know whether and how that contractual provision is enforced in practice. Someone subject to this law literally can’t know what he can’t do or say; the police themselves aren’t sure!

The statute also fails constitutional scrutiny because it criminalizes speech based on the identity of the speaker. It’s well established that a state may not burden “a narrow class of disfavored speaker,” but that’s exactly what happens here. The very purpose of the First Amendment is to protect the speech of disfavored minorities—which sex offenders certainly are. Signaling out this speech for prosecution—without any allegation that it relates to conduct or motive—should earn the Tar Heel State a big “dislike” from the Supreme Court.

The Court hears argument in Packingham v. North Carolina on February 27.

Don’t Disparage the First Amendment

When Simon Tam formed an all Asian-American rock band, he knew it needed a name that would capture the band’s identity and ethnic pride. He chose “The Slants” to, in his own words, “take on these stereotypes that people have about us, like the slanted eyes, and own them.” The Slants knew they might have some critics, but they weren’t expecting that one would be the U.S. Patent and Trademark Office (PTO), which punished them for their naming choice by denying their trademark application.

The PTO acted under a provision of the Lanham Act (the federal trademark statute) that bars the registration of any trademark “which may disparage … persons, living or dead, institutions, beliefs, or national symbols.” After a three-judge panel of the U.S. Court of Appeals for the Federal Circuit upheld this denial, the full court reheard the case and reversed, striking down the disparagement clause as violating the First Amendment. The case is now before the Supreme Court.

Did the New York Times Violate the Law by Publishing Trump’s Tax Return, or Is the Law Unconstitutional?

After the New York Times published the 1995 tax returns of Donald Trump, Callum Borchers at the Washington Post and others have said it might be illegal. Trump’s lawyer claimed that publishing the returns was illegal without Trump’s consent, and, being Trump’s lawyer, he of course threatened “prompt initiation of appropriate legal action.”
 
Adding to the confusion, during a panel discussion at Harvard Law School in mid-September, Bob Woodward, associate editor of the Washington Post, and Dean Baquet, executive editor of the New York Times, presciently discussed whether they would publish Trump’s tax returns if they got ahold of them. “You know what your lawyers would tell you,” Woodward said, ”if you publish them, you go to jail.” Baquet said he would “seriously fight to publish [Trump’s] tax returns.”
 
For federal tax returns, there is a specific statute that prohibits publishing without consent (26 U.S.C. § 7213(a)(3)). But the Times only published the first page of Trump’s New York, New Jersey, and Connecticut tax returns (not the federal tax returns) so that statute would not apply. 
 
Of those states, only New York has a privacy statute that could be construed to apply to non-government employees/contractors like the Times. Not to make your brain atrophy from an overdose of legalese, but the New York statute prohibits
any person who, pursuant to this section, is permitted to inspect any report or return or to whom a copy, an abstract or a portion of any report or return is furnished, or to whom any information contained in any report or return is furnished, to divulge or make known in any manner the amount of income or any particulars set forth or disclosed in any report or return required under this article.
This bit of printed chloroform is a convoluted statute (welcome the study of law), but the fairest reading is that the phrase “pursuant to this section”—i.e., the entire section describing the “general powers of the tax commission”—applies only to those who are “permitted to inspect any report or return” under New York law, such as some government contractors. The other entities listed, such as those “to whom a copy, an abstract or a portion of any return is furnished,” can be anyone, even those who obtained a return not “pursuant to this section.” That includes the Times.
 
So, let’s assume that what the New York Times did was against the law. A more interesting question is: would that law be constitutional under the First Amendment? After all, prohibiting someone from divulging information to the public is clearly an abridgement of speech, so would the law fall under an exception to the general rule that the government cannot prohibit speech?
 
The most relevant case would be Bartnicki v. Vopper from 2001. That case dealt with a radio commentator who broadcast a tape of an illegally recorded conversation between a chief union negotiator and a union president. The federal statute at issue prohibited people from “willfully disclosing the contents” of any communication that the person knew or had reason to know “was obtained through an illegal interception.” The Court struck the statute down as unconstitutional because it “implicates the core purposes of the First Amendment” by imposing “sanctions on the publication of truthful information of public concern.” Publishing crucial and truthful information about a presidential candidate a month before the election certainly implicates matters of “public concern.”
 
Finally, because the New York law makes it illegal to merely “divulge or make known” tax return information,  it is broader than laws that prohibit someone from releasing a tax return that he knows (or has reason to know) was obtained illegally. In other words, it prohibits even more speech than the law in Bartnicki. Therefore, it seems likely that the law would be struck down as unconstitutional. 

One Threat To Freedom Of Opinion Down, In California. Many More To Go.

At Overlawyered, I’ve repeatedly covered California Attorney General Kamala Harris’s audacious demand for the donor lists of nonprofits that carry on activities in California, a step likely to lead to both private and public retaliation against individuals and groups revealed to have donated to unpopular or controversial causes. So this is good news: a federal district judge in California has ruled that her crusade violates the Constitutional rights of one such group, Americans for Prosperity Foundation.

As the WSJ notes in an editorial, U.S. District Judge Manuel Real “declared her disclosure requirement an unconstitutional burden on First Amendment rights,” finding that there was scant evidence the disclosures were necessary to prevent charitable fraud, and that, contrary to assurances, her office had “systematically failed to maintain the confidentiality” of nonprofits’ donor lists, some 1,400 of which Harris’s office had in fact published online. As for retaliation against donors, “although the Attorney General correctly points out that such abuses are not as violent or pervasive as those encountered in NAACP v. Alabama or other cases from [the civil rights] era,” he wrote, “this Court is not prepared to wait until an AFP opponent carries out one of the numerous death threats made against its members.”

Our Friends at CEI Face a Subpoena Over Climate Dissent

The campaign to attach legal consequences to supposed “climate denial” has now crossed a fateful line. Yesterday:

The Competitive Enterprise Institute (CEI) today denounced a subpoena from Attorney General Claude E. Walker of the U.S. Virgin Islands that attempts to unearth a decade of the organization’s materials and work on climate change policy. This is the latest effort in an intimidation campaign to criminalize speech and research on the climate debate, led by New York Attorney General Eric Schneiderman and former Vice President Al Gore….

The subpoena requests a decade’s worth of communications, emails, statements, drafts, and other documents regarding CEI’s work on climate change and energy policy, including private donor information. It demands that CEI produce these materials from 20 years ago, from 1997-2007, by April 30, 2016.

CEI General Counsel Sam Kazman said the group “will vigorously fight to quash this subpoena. It is an affront to our First Amendment rights of free speech and association.” More coverage of the subpoena at the Washington Times and Daily Caller.

A few observations:

  • If the forces behind this show-us-your-papers subpoena succeed in punishing (or simply inflicting prolonged legal harassment on) a group conducting supposedly wrongful advocacy, there’s every reason to think they will come after other advocacy groups later. That includes yours.
  • This article in the Observer details the current push to expand the probe of climate advocacy, which first enlisted New York AG Eric Schneiderman and then California’s Kamala Harris — into a broader coalition of AGs, with Massachusetts and the Virgin Islands just having signed on. More than a dozen others, such as Maryland Attorney General Brian Frosh, seem to be signaling support but have not formally jumped in. More: Peggy Little, Federalist Society.
  • CEI people, many of whom we count as longtime friends and allies in the pro-liberty policy community, have been active critics of the Schneiderman effort, with Hans Bader, a senior attorney there, highly critical just a week ago.
  • In these working groups of attorneys general, legal efforts are commonly parceled out among the states in a deliberate and strategic way, with particular tasks being assigned to AGs who have comparative advantage in some respect (such as an unusually favorable state law to work with, or superior staff expertise or media access). Why would one of the most politically sensitive tasks of all — opening up a legal attack against CEI, a long-established nonprofit well known in Washington and in libertarian and conservative ideological circles — be assigned to the AG from a tiny and remote jurisdiction? Is it that a subpoena coming from the Virgin Islands is logistically inconvenient to fight in some way, or that local counsel capable of standing up to this AG are scarce on the ground there, or that a politician in the Caribbean is less exposed to political backlash from CEI’s friends and fans than one in a major media center? Or what?
  • I recommend checking out the new Free Speech and Science Project, which intends to fight back against criminalization of advocacy by, among other things, organizing legal defense and seeking to hold officials accountable for misusing the law to attack advocacy.
  • This is happening at a time of multiple, vigorous, sustained legal attacks on what had been accepted freedoms of advocacy and association. As I noted yesterday in a piece in this space, Sen. Elizabeth Warren has just demanded that the Securities and Exchange Commission investigate several large corporations that have criticized her pet plan to impose fiduciary legal duties on retirement advisors, supposedly on the ground that it is a securities law violation for them to be conveying to investors a less alarmed view of the regulations’ effect than they do in making their case to the Labor Department. This is not particularly compelling as securities law, but it’s great as a way to chill speech by publicly held businesses.

[cross-posted, with slight changes, from Overlawyered]

Public-Sector Unions Survive to Fight Another Day

This morning, the Supreme Court disappointingly, but expectedly, split 4-4 in Friedrichs v. California Teachers Association. With Justice Antonin Scalia’s untimely death, one of the likely blockbusters of the term turned into a terse, one-sentence opinion: “The judgment is affirmed by an equally divided Court.”

“The judgment” was the Ninth Circuit’s decision, which sided with the unions on the question of whether forced union dues for public-sector workers violate the First Amendment. At stake in Friedrichs was whether public-sector unions would continue to be permitted, under a 1977 case called Abood v. Detroit Board of Education, to take forced dues from non-members in order to fund the day-to-day activities of the union. In an alternate universe, one in which Scalia is still alive and sitting on the Court, Friedrichs would have almost assuredly overruled or severely limited Abood, essentially converting public-sector unions into “right to work” unions.  

The lack of a blockbuster decision in Friedrichs is one of the most significant immediate consequences of Scalia’s death. Few issues split the Court more starkly than unions, and there were clearly irreconcilable differences among the justices. Friedrichs was only argued on January 11, so the justices didn’t take too long to conclude that there was no way to decide the case with five justices in the majority, thus the thoroughly unsatisfying opinion today.

Rights in the Balance

The right to swing my fist ends where the other man’s nose begins.

The saying, it turns out, has some of its pedigree in Prohibition, during which the right to serve drinks was said to interfere with the rights of the family. But misapplication to “group rights” aside, it’s a phrase that captures our system of rights well. You are (or should be) free to do whatever you wish, so long as you don’t injure others in their rights.

You can see society hammering out the dividing line between rights in a case that produced a jury verdict last Friday: Hulk Hogan vs. Gawker. The provocative website published a mid-2000 video of the former wrestler and TV personality having sex with a friend’s wife. Hogan sued and won a verdict of $115 million, which Gawker will appeal.

The argument on Hulk’s side is that public exposure of a person’s intimate moments and bodily functions violates a right to privacy. The free speech argument is that a person has a right to broadcast and discuss anything he or she pleases.

These are both important rights. The privacy right is a little younger, having developed since about 1890. The free speech right pre-existed its 1791 acknowledgement in the Bill of Rights, so speech has a stronger heritage. But the dividing line will never be decided once and for all. Common practices and common mores will set and reset the line between these rights through accretion and erosion, the way a winding river divides a plain. That way of producing rules is very special: common law courts deciding in real cases what serves justice best.

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