FAN 206 Another Union Case Before the Court: Business v. Union Political Contributions

How the Supreme Court will harmonize [the conflicting campaign finance] cases with Citizens United remains unclear. Considerations about the amassing of wealth and the corporate structure seem to be handled differently depending on the context. It may be that contributions and concerns about quid pro quo corruption, or its appearance, allow in these considerations but independent expenditures, and the speech they entail, do not. This remains to be seen. 

—Chief Justice Scott L. Kafker

The case is 1A Auto, Inc. v. Sullivan. The three issues raised in the case are:

1. Should Federal Election Commission v. Beaumont (2003) be overruled because it conflicts with more recent decisions of this Court and insufficiently protects freedom of speech and association?
2. Should contribution limits that impose different limits on different classes of donors receive strict scrutiny?
3. Does Mass. Gen. Laws c. 55, § 8 violate the First Amendment and the Equal Protection Clause by banning businesses, but not unions and non-profit organizations, from making political contributions?

→ The Massachusetts high court denied the constitutional challenges in IA Auto, Inc. v. Director of the Office of Campaign and Political Finance (Mass., 2018).

→ Counsel of Record for the Petitioner: Jacob Huebert, senior attorney at the Goldwater Institute. Mr. Huebert was one of the counsels listed in the Petitioner's cert. petitition and merits brief in Janus v. AFSCME (2018).

→ C-SPAN moderated conversation between Mark Janus and Jacob Huebert (June 29, 2018)

→ Common Cause amicus brief in the Massachusetts Supreme Judicial Court

Noteworthy: Paul Clement argued the Beaumont case in the Supreme Court on behalf of the government. 

Yesterday: Jameel Jaffer Argued Knight Institute v. Trump in Second Circuit 

• Story and video here
• Knight Institute appeal brief 
•  Amicus briefs
  • Internet Association (in support of neither party)
  • Coolidge-Reagan Foundation (in support of the government)
• Government's appeal brief (2d Cir.)

Forthcoming in HLR: Blocher Article 

• Joseph Blocher, Free Speech & Justified True Belief, Harvard Law Review (forthcoming, 2019)

Abstract: Law often prioritizes justified true beliefs. Evidence, even if probative and correct, must have a proper foundation. Expert witness testimony must be the product of reliable principles and methods. Prosecutors are not permitted to trick juries into convicting a defendant, even if that defendant is truly guilty. Judges’ reasons, and not just the correctness of their holdings, are the engines of precedent. Lawyers are, in short, familiar with the notion that one must be right for the right reasons.
 

And yet the standard epistemic theory of the First Amendment—that the marketplace of ideas is the “best test of truth”—has generally focused on truth alone, as if all true beliefs must be treated equally. This thin account leaves the epistemic theory vulnerable to withering criticism, especially in a “post-truth” era.

This Article suggests that the epistemic theory of the First Amendment might be reframed around a different value: not truth alone, but knowledge. Beginning with the tripartite definition of knowledge as justified true belief, philosophers from Plato until the present day have tried to account for what makes knowledge distinct and distinctly valuable. And in many ways law, too, already accounts for the existence and value of justifications, not just true beliefs. Identifying and exploring those threads of constitutional theory and doctrine can help provide a richer account of the cognitive First Amendment at a time when it is sorely needed. Doing so can also help resolve thorny doctrinal problems like those involving professional speech and institutional deference.

Over at Balkinization: Koppelman Weighs in on Yale Free Speech Flap

• Andrew Koppelman, Friends with odious beliefs, Balkinization (March 22, 2019)

Two Forthcoming Books: One on Textbook Controversy & Another on Censorship

• Charles W. Eagles, Civil Rights, Culture Wars: The Fight over a Mississippi Textbook (UNC Press, Aug. 1, 2019)
• Harold L. Pohlman, Free Speech and Censorship: Examining the Facts (ABC-CLIO, May 31, 2019)

Forthcoming: Against Free Speech 

• Anthony Leaker, Against Free Speech (Rowman & Littlefield, Nov. 16, 2019)

Article by Prof. Webber Urges Return to Proportionality and Balancing

• Grégoire Webber, Proportionality and Limitations on Freedom of Speech, in Fred Schauer & Adrienne Stone, eds., The Oxford Handbook of Freedom of Speech (forthcoming)

Forthcoming Scholarly Articles

• Claudia Haupt, Sex and the First Amendment Through the Lens of Professional Speech, First Amendment Law Review (2019)
• Peter Ormerod, A Private Enforcement Remedy for Information Misuse, Boston College Law Review (2019)

New & Notable Blog Posts

• David L. Hudson, 9th Circuit: School officials can punish student for off-campus-created hit list, First Amendment Encyclopedia (March 21, 2019)
• Eugene Volokh, No, a Web Platform's Decision to Restrict Speech Doesn't Strip It of 47 U.S.C. § 230 Immunity, The Volokh Conspiracy (March 20, 2019)
• Eugene Volokh, Rep. Devin Nunes Suing Tweeters for "Insulting Words," Claiming the Insults Caused $250M of Damage to Him, The Volokh Conspiracy (March 20, 2019)

FIRE Statement on Campus Free Speech Executive Order

• Go here

Stetson Professor Discusses "Statement of Principles of Free Expression"

• Stetson University professor Chris Ferguson discusses ‘Statement of Principles of Free Expression’ (with Mary Zoeller and Professor Chris Ferguson), FIRE, March 22, 2019

So to Speak Podcast on Defamation Lawsuits and Content Moderation

• Interview with Mike Masnick, founder & editor of Techdirt.com, So To Speak, March 21, 2019

Three "Free Speech on College Campuses" Videos from the National Constitution Center

• Panel 3, Student Advocates & Free Speech: National Constitution Center (March 22, 2019) "Samantha Harris of Foundation for Individual Rights in Education, Michele Rovinsky of Drexel University, and Nicki Neily of Speech First explore how students are affected by university speech policies. Mark Yudof, former president of the University of California and professor of law emeritus at UC Berkeley School of Law, moderates."
• Panel 2, Administrators & Free Speech: "Dean Ted Ruger of Penn Law, President Tom Sullivan of the University of Vermont, President Ken Gormley of Duquesne University, and President Julie Wollman of Widener University, examine how they balance free speech and inclusion interests on campus. Jeffrey Rosen, President and CEO of the National Constitution Center moderates."
• Panel 1, Professors & Free Speech: "Professors Cary Nelson of the University of Illinois, Anita Bernstein of Brooklyn Law, and Amy Wax of Penn Law, discuss how they balance free speech and inclusion interests in the classroom, and the impact of academic freedom policies on professor speech. Sheldon Gilbert, Vice President for Content and Development & Senior Fellow for Constitutional Studies at the National Constitution Center, moderates."

Strosssen's Book on Hate Selected by Wash. U. for "Common Reading Program"

From Student Life, Washington University's independent student newspaper:

According to [Washington University's Vice Chancellor for Student Affairs Lori] White, the University selected "Hate: Why We Should Resist It with Free Speech, Not Censorship" by Nadine Strossen as the book for the 2019 Common Reading Program.

"We selected this book as the common reading to increase students’ understanding of the principles of free speech,” White said. “We will also have a new session during Bear Beginnings focused on providing students with some tools to engage in conversation and dialogue across differences."

Video: Penn State President on Protecting Free Speech

• Penn State President Eric Barron on protecting free speech (March 22, 2019)

News & Op-Eds

• Tyler Hammel, In filing, U.S. attorney rejects First Amendment claims in rally rioting case, The Daily Progress, March 23, 2019.
• Alex Darus, Cheerleader dismissed over profane Snapchat wins First Amendment case, Alt Press, March 23, 2019
• Nathaniel Sobel, Breaking Down the Combating BDS Act of 2019 and First Amendment Challenges to State Anti-BDS Laws, Lawfare, March 19, 2019

Flashback: March 27, 1961: ACLU Defends John Birch Society

• ACLU Opposes Legislative Investigation of Right-Wing John Birch Society, Today in Civil Liberties History

2018–2019 Term: Free Expression & Related Cases

Cert. Granted

• Iancu v. Brunetti
• Nieves v. Bartlett

Pending: Cert. Petitions

• 1A Auto, Inc. v. Sullivan
• Missouri Ethics Commission, et al. v. Free and Fair Election Fund
• Knox v. Pennsylvania
• Uradnik v. Inter Faculty Organization
• In-and-Out Burger v. NLRB
• The Colorado Independent v. District Court
• Township of Millburn v. Palardy

Cert. Denied

• Tate v. United States
• Abbott, et al. v. Pastides (reply brief here)
• Utah Republican Party v. Cox
• McKee v. Cosby, Jr. (Thomas, J., concurring in denial of cert. with opinion)
• Kennedy v. Bremerton School District
• Lair v. Motil
• Lair v. Mangan
• Berninger v. FCC (net neutrality)
• Montanans for Community Development v. Mangan
• Zimmerman v. Austin
• Township of Millburn v. Palardy

FOIA: Review Granted

• Food Marketing Institute v. Argus

Free Expression Related Cases: Review Granted

• Nieves v. Bartlett (probable cause, first amendment, and retaliation)

Pending Free Expression Related Cases

• Manhattan Community Access Corp. v. Halleck
• Rucho v. Common Cause (standing and gerrymandering)
• Manhattan Community Access Corp. v. Halleck (state action)
• Woodhull Freedom Foundation v. United States (Art. III, standing)

Last Posted FAN

• 205.1: President Issues Executive Order on Campus Free Speech

Last Scheduled FAN

• 205: New Book: “The People v. Ferlinghetti: The Fight to Publish Allen Ginsberg’s HOWL"