Topic: Constitution, the Law, and the Courts

You Can’t Make This Up: A Speech Code that Investigates Students for Discussing the Freedom of Speech

Public university campuses, once bastions of free thought, have become increasingly hostile toward the freedom of speech. Although students greatly benefit from expressing and being exposed to a wide variety of ideas, administrators often prevent this from happening. An increasing number of universities have even instituted speech codes that subject students to burdensome investigations merely for exercising their First Amendment rights.

Two student organizations at the University of South Carolina ran afoul of campus speech codes when, in promoting a pro-free speech event, they displayed posters and handouts that referred to censorship at other colleges. Although the students obeyed the school’s regulations about handing out materials, several people filed harassment charges because they didn’t like what the handouts said. In a bizarre turn of events, the students were questioned and investigated by school officials—for talking about incidents where other students were likewise questioned and investigated for exercising their First Amendment rights. To make matters worse, the university refused to clarify its policies and essentially imposed a gag order on one student, forbidding him from discussing this incident with the faculty or student body.

The Supreme Court has held that the First Amendment allows the government to set reasonable restrictions on time, place, and manner of expression. But the Court has repeatedly said that the government can’t act in a way that discourages speech. Its policies and actions must survive strict judicial scrutiny—being narrowly tailored to achieve a compelling interest—to even investigate individuals for engaging in protected expression. Public universities, as government actors, are legally bound by this principle. And yet the U.S. Court of Appeals for the Fourth Circuit ruled for the University of South Carolina here.

An extensive inquisitorial process like the one here has a chilling effect on speech. That is, people are less likely to exercise their First Amendment rights due to fear of reprisal. It is the epitome of state censorship for people not to be free to discuss even the very concept of free speech without facing investigation. The process itself is a punishment; not only is it extensive and undefined, but it also leaves the door open for future persecution.

The purpose of education is to broaden one’s mind, testing the strength of ideas in the fire of adverse opinion. Far-reaching campus speech codes run counter to this objective. Instead of producing strong young minds capable of adapting to the challenges of the adult world, universities like the one here have insulated and infantilized students, doing both the students and the public at large a great disservice.

Cato thus joins the ACLU of South Carolina, DKT Liberty Project, and Reason Foundation in filing an amicus brief urging the Supreme Court to hear Abbott v. Pastides and supporting students’ right to express themselves in ways consistent with the First Amendment. The Court should remind universities that the merits of a speaker’s ideas are determined by each individual listener, not by school administrators, and that the reward or punishment for speech is found in the swaying of public opinion, not in retaliatory investigation processes or the absence thereof.

Supreme Court Shouldn’t Let Agencies Get Away with Animal House Rules

Businesses in regulated industries rely on the advice of the regulating agency when making decisions. But, with so many businesses asking the agency for advice, sometimes the agency will need its professional staff (rather than the commissioners or other principals) to help answering questions. If a staff member issues advice, should that be considered the agency’s advice? If not—and if it can neither be relied upon for legal purposes nor be subject to judicial review—isn’t it worse than not getting any advice at all?

Soundboard Association, an industry group representing call centers and others using new phone-dialing technology, wants to know the answer to those questions. In 2009, a Federal Trade Commission staff member sent a letter to a telemarketing company that used soundboard technology. The letter stated that soundboard technology was not subject to regulation under the Telemarketing Sales Rule, which prohibits, with some exceptions, making phone calls that deliver a pre-recorded message. Although soundboard technology does deliver pre-recorded messages, a live operator selects which audio file to play in response to the customer’s answers. The staff member said that, because this made calls using soundboard technology “virtually indistinguishable” from calls between two people, they were not subject to the rule.

In 2016, seven years after that letter, the same staff member sent another letter to the telemarketing company. This letter said that, because the FTC had received complaints about soundboard calls, the technology would now be subject to the Telemarketing Sales Rule. The letter demanded that companies cease using the technology until the technology improved. But if the FTC wants to change its mind on a rule, there’s a process for that—the scope of judicial deference to agency reinterpretations is a live legal debate—and regardless, regulatory determinations are supposed to be subject to judicial review, if they’re final.

The Supreme Court Really Needs to Start Defining the Scope of the Second Amendment

You can find just about any kind of restaurant imaginable in our nation’s capital, but what you won’t find, no matter how hard you look, is a gun store. D.C. residents who want to buy guns, like Tracey and Andrew Hanson, have to leave the district to get them. D.C. law specifically allows residents to buy firearms from outside the District.

So the Hansons visited Frederic Mance, a federally licensed gun dealer in Texas. D.C. law had no problem with the Hansons buying a gun from Mance, and the law of Texas allowed Mance to sell to the Hansons. The Hansons agreed to buy handguns from Mance in what would be an otherwise entirely lawful transaction, but there was a problem: the federal government (of course).

Federal law categorically forbids firearms dealers from selling handguns to anyone not a resident of the state in which the dealer does business. The purported justification for this restriction is that the government doesn’t believe licensed dealers can handle complying with the laws of the purchaser’s state—even though they are required to do just that should the customer want something like a bolt-action rifle, shotgun, or even (heavily restricted) machine guns.

Mance, the Hansons, and several others sued the federal government in Texas, arguing that the interstate handgun-transfer ban violated their Second Amendment right to bear arms and Fifth Amendment right to equal protection. The district court agreed that the law was unconstitutional, but when the case came to the U.S. Court of Appeals for the Fifth Circuit, a closely divided court found for the government, over strong dissent. The plaintiffs now appeal their case to the Supreme Court, hoping our nation’s highest court will finally step in and clarify how laws are to be evaluated under the Second Amendment—something the justices have avoided doing since declaring in D.C. v. Heller (2008) that there is indeed an individual right to keep and bear arms.

Federal law has put the national firearms market into an irrational state. Dealers are trusted to follow the law of multiple states when selling long guns, but are categorically forbidden from doing the same with the most common arms in the country. It regulates the interstate arms trade as if the Founders hadn’t been driven to war by embargoes on trading guns, and exclusively targets the arms which Americans—and the Supreme Court—have indicated are the most crucial for self-defense.

Because the right to armed self-defense is fundamental and should not be given “second class” treatment, Cato has filed an amicus brief urging the Supreme Court to hear the Mances’ case. In an area of the law where the circuits diverge substantially on how to treat an important civil right, the Court needs to step in and help set the course. This case is an ideal vehicle in which to do it, as its resolution would not directly disrupt the nation’s diverse tapestry of gun laws, but instead help equip lower courts with the tools they need to properly map the metes and bounds of the Second Amendment.

The Supreme Court will decide whether to take up Mance v. Whitaker later this winter.

The First Amendment Allows You to Draw Your Own Conclusion on Same-Sex Marriage

Earlier this year in Masterpiece Cakeshop, the Supreme Court contended with the issue of whether cake-baking is protected speech under the First Amendment, and thus whether a Christian baker could refuse to design a wedding cake for a same-sex ceremony. The Court ended up punting on the case’s major questions, but now the Arizona Supreme Court is facing a similar issue, this time with calligraphers instead of bakers.

Artists Joanna Duka and Breanna Koski are practicing Christians who own and operate Brush & Nib, an art studio in Phoenix, Arizona. In addition to designing wedding invitations using calligraphy, they produce recreations of wedding vows and other custom artistic works. Phoenix’s public accommodation law would require them to design invitations and vows for every ceremony—even those that conflict with their sincerely held faith. The city imposes draconian punishments for failing to comply with this law; Joanna and Breanna could face fines of $2,500 per day, or up to six months in jail. It seems that in Phoenix, Christian artists who oppose same-sex marriage must choose between practicing their faith and running a business if they want to avoid both bankruptcy and jail time.

Cato of course has a long history of supporting both gay rights and the First Amendment. We were the only organization in the entire country to have filed briefs supporting the petitioners in both Masterpiece Cakeshop and the marriage cases that ended in Obergefell v. Hodges (2015). Now, joined by professors Dale Carpenter and Eugene Volokh—who differed on Masterpiece Cakeshop because they consider cakemaking not sufficiently expressive for the First Amendment to apply—Cato has filed an amicus brief arguing that expressive small businesses (including calligraphers) are indeed protected from speech compulsions.

The First Amendment, in stark contrast to Phoenix’s public accommodation law, protects people from government-compelled expression. The Supreme Court in Wooley v. Maynard (1977) established that even forcing a driver to display a license plate with the motto “Live Free or Die” violated that person’s “individual freedom of mind.” It would surely violate someone’s conscience far more to be forced to design art or otherwise convey messages for a ceremony with which they disagree.

Besides, the Arizona Supreme Court previously held that tattoo design is art, and that both the design and sale of such art is protected by the First Amendment. According to the Arizona Court of Appeals in this case, however, calligraphy—unlike tattoo design—is not “inherently expressive.”

The lower court ignored all historical evidence proving that calligraphy is art. Not only is calligraphy considered a fine art in Chinese tradition, but it also has had a profound effect on American history. After all, our own Declaration of Independence is a masterpiece of calligraphy, designed by Timothy Matlack. If Matlack were forced to design royal proclamations declaring the colonists traitors, his freedom of conscience would have been severely violated—and the same applies to the Brush & Nib artists.

Wooley also provides an important limiting principle for protecting individual freedom of mind: it does not apply to all conduct, only First Amendment-protected expression. Far from the blanket discrimination that hoteliers and restauranteurs often leveled at African-Americans in the Jim Crow era, refusing to create a wedding invitation is simply refusing to speak in a way that would betray one’s faith or compromise one’s conscience. Just as the government cannot force a patriot like Timothy Matlack to denounce his fellows, or an atheist to endorse Scientology, the government cannot force orthodox Christians, Jews, and Muslims to design art for same-sex weddings.

Cato Daily Podcast: Another Perspective on FIRST STEP

The U.S. House is expected to vote on the FIRST STEP Act today after the legislation passed the Senate late Tuesday.

For today’s Cato Daily Podcast, I spoke with Shon Hopwood of the Georgetown University Law Center about what the act does and why he views the legislation as both historic and modest reform.


Hopwood spoke at the Cato Institute’s Cato Club 200 event this year where he detailed his own experiences as a federal inmate and why sweeping criminal justice reform remains necessary.

The First Amendment Protects Boozy Talk

A restriction of free speech by any other name is still unconstitutional. No matter how much the Missouri government wants to regulate alcohol it may not do so by restricting the freedom of speech. Cato joins the ACLU and the Freedom Center of Missouri on an amicus brief supporting a challenge to a Missouri law prohibiting alcohol producers from advertising alcohol prices unless the prices are displayed inside a retailer—and they may not advertise who their retail partners are unless they list more than one. This both limits and compels speech.

The government argues that advertising is “commercial speech” and therefore not afforded the same protections under the First Amendment as every other type of speech. The “commercial speech” doctrine traces back to Valentine v. Chrestensen, an infamous case from the 1940s in which the Court arbitrarily decided commercial advertising wasn’t constitutionally protected. The Court has slowly been hacking away at this arbitrary rule, eventually creating an intermediate protection for commercial speech in under the Central Hudson Gas & Electric Corp. v. Public Service Commission (1980), where courts must balance four factors before deciding whether to nullify a restriction on commercial speech.

The Central Hudson test requires courts to determine: (1) whether the speech is false or misleading, (2) whether the government has a “substantial interest” in regulating the speech at issue, (3) whether the censorship directly advances the government’s interest in regulating the desired object, and (4) whether the government’s speech-regulation is no more restrictive than necessary. As reasonable as the words may seem in the abstract, the test has sprouted a thicket of arbitrary rulings contrary to the original meaning of the First Amendment.

What exactly qualifies as a “substantial interest” for a government has never been particularly clear. Nor has the Court been able to demonstrate where in the First Amendment some types of speech are afforded greater protections than others. Justices from John Paul Stevens to Clarence Thomas have criticized the Central Hudson test for its arbitrary factors and lack of grounding in the text of the First Amendment.

Our brief argues that alcohol advertising is just as much a form of speech as literature and political speech, deserving of protection from arbitrary government restrictions. The Central Hudson test should be eliminated in favor of the standard First Amendment protection for any kind of speech—which of course isn’t absolute, but is also not subject to government whim.

Despite the “commercial speech” doctrine’s emergence seemingly over night, and that the Central Hudson test still stands after nearly 30 years, Cato once more opposes this impediment to both the freedom of speech and economic liberty in the hope that, as Shakespeare put it in Henry VI, Part III, “many strokes, though with a little ax, hew down and fell the hardest timbered oak.”

Bump Stock Rule Bumps Up Against the Constitution

This morning, Acting Attorney General Matthew Whitaker signed the Trump Administration’s new regulation banning bump stocks. The final rule is largely unchanged from the one put up for notice and comment several months ago, but contains over 100 pages of responses to the tens of thousands of comments submitted both in favor of and opposition to the rule (the majority of which opposed the rule, including a comment submitted by us and Josh Blackman).

The Administration’s main contention continues to be that language of the National Firearms Act and Gun Control Act—which has not needed clarification in some 80 years—is ambiguous in regards to bump firing, a contention we dispatched back in June. Yet the government is attempting to use this supposed ambiguity to shoehorn bump stocks into a statute that regulates possession of machine guns.

Regardless of what public opinion is at this moment, the law means what it says. The executive branch has the power to interpret existing law, not write new ones. The administration argues, essentially, that because the statute did not provide a separate definition of the terms “automatically” and “function,” that it gets to insert their own meaning. That simply isn’t the case. Administrative interpretations are supposed to do just that—interpret existing law—not give new meaning to an old one.

In this case, the existing law specifically defines “machine gun”; several administrations have reviewed bump stocks and repeatedly determined that they don’t fall in that category. It’s been clear for decades that Gatling guns and bump stocks were not machine guns. This regulation is not an attempt to clarify a vague law, but to seize political expediency to expand the power of the executive.

If the government really wants to regulate bump stocks, it needs to do so by passing a new law, not by assigning new meaning to an old one. The Founders weren’t short-sighted; there is a reason laws that affect the entire nation have to come through Congress, not reimagined by bureaucrats.

What’s worse is the fact that the administration’s attempt to skirt the Constitution is for something as inconsequential as bump stocks. We are talking about seriously damaging the integrity of our legal system over a novelty item. In a country as divided as ours, this seems like a squandering of political capital.

The powers of the federal government are few and defined, not open to unlimited interpretation by unelected bureaucrats. In light of this, our regulatory comment potentially gives Cato a right to intervene in the coming litigation. Stay tuned.