First Amendment News 283: Noted media lawyer and scholar Lee Levine retires

"He is and has long been a great lawyer, a preeminent teacher of lawyers, and an indispensable defender of the First Amendment." That's how Floyd Abrams tagged Lee Levine, the man to whom this issue of First Amendment News is dedicated.

Ever since his days on the Yale Law Journal when he published a student note titled "The Editorial Process and the Gertz Public Figure Standard," to the prestigious media law firm he co-launched that later merged with Ballard Spahr, to the First Amendment cases he successfully argued in the Supreme Court (Harte-Hanks Communications, Inc. v. Connaughton and Bartnicki v. Vopper), to the times he testified before Congress on shielding reporters' sources, to the treatise he co-authored on news-gathering law, to the book he co-authored on Justice Brennan and New York Times v. Sullivan, to his various scholarly articles, to his co-founding of the First Amendment Salons, and so much more! In all of those ways, Lee Levine has been a stalwart and learned figure in the law and history of free press and free speech in America.

Hence, on the occasion of his retirement from the day-to-day practice of law, I am sure I speak for many in our community in wishing Lee all the best in the years to come. And if only for selfish purposes, may he continue to offer his sage counsel on those issues that shape the future of the First Amendment.

In order to provided readers with a sketch of Lee's lifetime of work, I have highlighted a few of his many achievements. Before turning to that, however, some of Lee's friends and colleagues wanted to say a few words on his behalf.

The measure of the man

• "Lee and I were in the same class at Yale Law and became great friends while working on the Yale Law Journal. Lee knew from the start of law school where he was headed — to being a media lawyer. He was fortunate because that is what he was born to be, and he knew it! The result has been a career of great benefit to Lee's clients and to the First Amendment.  He has earned a rewarding next phase of life." — Paul M. Smith
• "Lee Levine is a giant in our profession. His excellence as a media lawyer is exceeded only by his cheerful collegiality and warmth as a human being. His retirement marks the end of an era." — Robert Corn-Revere
• "Lee is an outstanding lawyer, whose excellence in legal writing and analysis resulted in reported decisions on key issues for media companies, and set a high bar for the rest of us to follow. He also is one of the most honorable and decent people I know. A brilliant legal mind and kind heart do not always go hand in hand (some might even say 'rarely'!) but Lee is the exception."  — Kelli Sager
• "Lee is one of a kind. Clients and colleagues all know him to be a superb lawyer, a gifted scholar, and a leader in the First Amendment and media bar. For those of us who have had the incredible privilege of practicing with him, he has also been an exceptional colleague, an inspired mentor, and a true mensch." — Seth Berlin
• "Lee is an irreplaceable treasure of the media defense bar. As a defender of First Amendment freedoms his grasp of the law is unsurpassed, his judgments solid, his strategies inspired. As the leader of our law firm, he possessed a singular ability to lift up others and motivate us all to succeed. Lee could turn ideas into action and rally people to his causes. Lee has taught me a great deal about law and life, and I am grateful to have had the opportunity to work closely with him over the past 20 years. As he moves on to being a full-time author (and golfer), I will miss his insights, his strength, and his support, but look forward to his continuing friendship and to reading the fruits of his labors!" — David A. Schulz
• "Lee Levine has long been one of the most committed, thoughtful and dynamic defenders of freedom of the press and freedom of speech. He leaves a strong legacy that will help support a strong, independent news media for years to come." — Stephen Wermiel

Lee Levine: A sketch for a portrait

Yale Law Journal 

• Managing editor of the Yale Law Journal in 1979 (Vol. 88).

Judicial clerkship

• Clerked for Irving R. Kaufman, then-Chief Judge of the U.S. Court of Appeals for the Second Circuit.

Law firms

• One of the founding attorneys of the highly-regarded First Amendment media law firm, Levine Sullivan Koch & Schulz, which merged with Ballard Spahr in October 2017.

Congressional testimony

• “Shielding Sources: Safeguarding The Public’s Right To Know," Testimony before Congressional Committee (July 24, 2018)

Books

• Lee Levine & Stephen Wermiel, "The Progeny: Justice William J. Brennan's Fight to Preserve the Legacy of New York Times v. Sullivan" (2014)

Articles

• Lee Levine & Stephen Wermiel, Levine and Wermiel: “Dubious Doubts and ‘the Central Meaning of the First Amendment’—A Preliminary Reply to Justice Thomas,” First Amendment Watch (2019)
• Lee Levine & Stephen Wermiel, "The Court and the Cannonball: An Inside Look," American University Law Review (2016)
• Lee Levine & Stephen Wermiel, "The Landmark That Wasn't: A First Amendment Play in Five Acts," Washington Law Review (2013)
• Lee Levine, Nathan Siegel & Jeanette Melendez Bead, "Handcuffing the Press: First Amendment Limitations on the Reach of Criminal Statutes as Applied to the Media," New York Law School Law Review (2011)
• Monica Langley & Lee Levine, "Branzburg Revisited: Confidential Sources and First Amendment Values," George Washington Law Review (1988)
• Note, "The Editorial Process and the Gertz Public Figure Standard," Yale Law Journal (1979)

C-SPAN appearances 

• Speaking on C-SPAN (1997-2019)

YouTube

• "Pear v. United States," Newseum,  (June 16, 2016) ("the issues involved in the Apple cellphone controversy were argued in front of a mock Supreme Court" — Lee Levine served as one of the Justices, see e.g. his comments at 29:50, 41:39, 56:09 and 1:00:42)
• "Independent Media and the Rule of Law," Panel Discussion, National Archives (June 2018)

Court grants cert. in three First Amendment cases

• Mahanoy Area School District v. B.L.
• Thomas More Law Center v. Becerra 
• Americans for Prosperity Foundation v. Becerra

Court denies cert. in three First Amendment cases

• Jack Daniel’s Properties Inc. v. VIP Products LLC
• Hurchalla v. Lake Point Phase
• Bruni v. City of Pittsburgh

Hudson on Trump, incitement, and the First Amendment 

• David L. Hudson, Jr.,  "Does the First Amendment Protect Trump on Incitement to Riot?," First Amendment Watch (Jan. 8)

Forthcoming handbook on free speech

• Ian Rosenberg (author) and Mike Cavallaro (illustrator), "Free Speech Handbook" (Sept. 14, 2021)

In this volume of the World Citizen Comics series, Ian Rosenberg and Mike Cavallaro create a practical framework for appreciating where our free speech protections have come from and how they may develop in the future.

Freedom of speech is fiercely defended in America and has been since the First Amendment was written. But how does it work, and what laws shape it?

Drawing on parallels between ten seminal Supreme Court cases and current events, Free Speech Handbook lays out the fundamentals of First Amendment law in an accessible and engaging way.

Seton Hall Law Reviews posts symposium issue on Justice Holmes's Abrams dissent 

• Seton Hall Law Review (vol. 51, issue no. 1, 2021)

Contributors

• Thomas Healey
• Robert Post
• David Rabban
• Laura Weinrib
• Joseph Blocher
• James Weinstein
• Tim Wu
• Vincent Blasi
• Frederick Schauer
• Jeremy Waldron
• Burt Neuborne

New scholarly article on 'fighting words' cases

• David L. Hudson, "The Fighting Words Doctrine: Alive and Well in the Lower Courts," University of New Hampshire Law Review (2020)

Institute for Free Speech: Paid summer internship

We have a new summer associate program that provides a unique opportunity for law students to explore a career in public interest and First Amendment law. The program is open to students who will finish their first or second year of law school by the summer of 2021.

Fellows are eligible to earn $10,000 in salary for their 10 weeks of employment.

Please share this opportunity with your strongest students who have an interest in First Amendment law. Students can learn more about the opportunity and apply here.

Fellows are expected to work full time for 10 weeks in our Washington, D.C. area headquarters, but other arrangements may be available to especially outstanding candidates. Considering the ongoing pandemic, the possibility remains that fellows will work remotely for some or all of the summer.

Applications will be reviewed on a rolling basis, and early applicants are likely to have a competitive advantage. Applications received after March 1, 2021 will not be eligible for a $10,000 paid fellowship though other opportunities may still be available.

Over at The Volokh Conspiracy 

• Eugene Volokh, "Trump Was Kicked Off Twitter. Who's Next? — We should be wary of corporate power over political speech," The Volokh Conspiracy (Jan. 11)
• Eugene Volokh, "DERBY-PIE Trademark Owner Can't Stop Newspaper from Discussing Other Derby Pies," The Volokh Conspiracy (Jan. 12)

2020-2021 SCOTUS term: Free expression & related cases

Cases decided 

• Mckesson v. Doe (per curium, 7-1 with Thomas, J., dissenting) (judgment vacated and remanded to 5th Cir.)

Cases argued

• Facebook, Inc. v. Duguid (OA: Dec. 8, 2020) (Telephone Consumer Protection Act robocall case)
• Fulton v. City of Philadelphia (OA: Nov. 4, 2020) (religious expression: free exercise & free speech claims)
• Carney v. Adams (OA: Oct. 5, 2020) (standing/judicial elections)

Cert. granted

• Mahanoy Area School District v. B.L.
• Thomas More Law Center v. Becerra 
• Americans for Prosperity Foundation v. Becerra
• Facebook, Inc. v. Duguid (OA: Dec. 8, 2020) (Telephone Consumer Protection Act robocall case)
• Carney v. Adams (OA: Oct. 5, 2020) (standing/judicial elections)
• Fulton v. City of Philadelphia (OA: Nov. 4, 2020) (religious expression: free exercise & free speech claims)

Pending petitions

• Corn et al v. Mississippi Dept. of Public Safety (5th Cir. opinion)
• Trump v. Knight First Amendment Institute
• Stockman v. United States
• Institute for Free Speech v. Becerra
• Arlene’s Flowers Inc. v. Washington

Cert. denied

• Jack Daniel’s Properties Inc. v. VIP Products LLC
• Hurchalla v. Lake Point Phase
• Bruni v. City of Pittsburgh
• Hunt v. Board of Regents of the University of New Mexico
• Lieu v. Federal Election Commission
• City of Sacramento, California v. Mann
• Evans v. Sandy City, Utah
• Reisman v. Associated Faculties of the University of Maine
• Austin v. Illinois
• Living Essentials, LLC v. Washington

First Amendment-related 

• Rentberry, Inc. v. City of Seattle
• Uzuegbunam & Bradford v. Preczewski, et al. (nominal damages and mootness in campus speech context) (cert. granted)
• National Association of Broadcasters v. Prometheus Radio Project (Re: Section 202(h) of the Telecommunications Act of 1996) (cert. granted)
• Federal Communications Commission v. Prometheus Radio Project (Re: FCC cross-ownership restrictions) (cert. granted)
• Retzlaff v. Van Dyke (state anti-SLAPP laws in federal diversity cases) (cert. denied)

Last scheduled FAN

• FAN 282: "Covering SCOTUS and more — Lasnik and Liptak in dialogue”