First Amendment News 238: High Court to Hear Telephone Consumer Protection Act Robo Call Case

In its petition for review, the Government declared: "In holding that the government-debt exception to the TCPA’s automated-call restriction violates the First Amendment, the court of appeals subjected the exception to strict scrutiny.  The court’s application of strict scrutiny was unwarranted. Under the appropriate level of scrutiny, the government-debt exception is constitutional."

→ See also Ruthann Robson, "SCOTUS Will Hear First Amendment Challenge to Federal Robo-Call Law," Constitutional Law Prof Blog (Jan. 10, 2020)

Senate Restrictions on Impeachment Press Coverage

• Edward Moreno, "Senate Restrictions on Impeachment Press Coverage Draw Backlash," The Hill (Jan. 14, 2020)
• Katherine Tully-McManus, "Impeachment Trial Security Crackdown Will Limit Capitol Press Access," Roll Call (Jan. 14, 2020)
• Bryan Lowry, "‘No Cameras, No C-Span, No Coverage.’ Rules Will Limit Access During Trump’s Trial," Kansas City Star (Jan. 14, 2020)

Again — Justice Department v. Apple

This from Business Insider:

• Attorney General William Barr has criticized Apple as unhelpful in cracking the locked iPhones.
• While Apple has provided the FBI with available records from the suspect's iCloud account, it has long resisted federal pressure to engineer a "backdoor" that would let investigators easily unlock iPhones.
• But according to experts, recent technological advancements have made it straightforward for law enforcement to crack iPhones without Apple's help, at least for now.

The Department of Justice is in a stand-off with Apple over the effort to unlock iPhones owned by a suspected terrorist — but according to cybersecurity experts, it should be straightforward for federal agents to crack the iPhones, even without Apple's cooperation.

Attorney General William Barr has repeatedly demanded that Apple help crack two iPhones belonging to Mohammed Alshamrani, but they are locked with unknown passwords. Alshamrani is charged with shooting and killing three people in a December attack on Naval Air Station Pensacola.

Apple has maintained that it has cooperated with federal agents. An Apple spokesperson told Business Insider that it had already provided iCloud backups, account information, and "transactional data" from Alshamrani's accounts. The spokesperson said the FBI first notified Apple that it needed additional assistance on Jan. 6, and that Apple received a subpoena for information related to Alshamrani's iPhones on Jan. 8, which it filled.

Related

• Pear v. United States (Newseum, June 17, 2016 moot court arguments) (Watch the argument.)

The issues involved in the “Apple-FBI” iPhone controversy were argued Wednesday before a panel of First Amendment, cybersecurity, civil liberties and national security experts — and the verdict from audience members watching the mock Supreme Court session was split.

Audience members were asked to select the issue, after hearing oral arguments in the case “Pear v. United States”, and asked to vote on which issue would most likely be central to the dispute if the controversy reached the U.S. Supreme Court.

The mock Supreme Court argument was presented by the Newseum Institute as a means of exploring the increasingly complex issues around privacy and national security needs, said Gene Policinski, the Institute’s chief operating officer. . . .

Sitting as the Supreme Court were:

• Floyd Abrams, renowned First Amendment lawyer and author; visiting lecturer at the Yale Law School (as the chief justice)
• Harvey Rishikof, most recently dean of faculty at the National War College at the National Defense University; chair of the American Bar Association Standing Committee on Law and National Security advisory committee
• Nadine Strossen, former president of the American Civil Liberties Union; the John Marshall Harlan II Professor of Law at New York Law School
• Linda Greenhouse, Knight Distinguished Journalist in Residence and Joseph Goldstein Lecturer in Law at Yale Law School; longtime U.S. Supreme Court correspondent for The New York Times
• Lee Levine, renowned media lawyer; adjunct professor of law at the Georgetown University Law Center
• Stewart Baker, national security law and policy expert; former assistant secretary for policy at the U.S. Department of Homeland Security
• Stephen Vladeck, professor of law at American University Washington College of Law; nationally recognized expert on the role of the federal courts in the war on terrorism
• The Hon. Robert S. Lasnik, senior judge for the Western District of Washington at the U.S. District Court

• Brief for Petitioner Pear (Robert Corn-Revere, Ronald London & Nan Mooney)
• Brief for Respondent United States (Joseph V. DeMarco & Jeffrey Barnum)

Lawrence Lessig Sues New York Times for Defamation

This from First Amendment Watch:

Harvard Law Professor Lawrence Lessig is suing The New York Times for defamation.

In a complaint filed on January 13^th in the U.S. District Court for the District of Massachusetts, Lessig alleges that the Times used a “false and defamatory ‘clickbait’ Internet headline and lede to drive readers to their story and web site.”

On September 14, 2019, the Times ran an article entitled, “A Harvard Professor Doubles Down: If You Take Epstein’s Money, Do It In Secret.” The article was written in the wake of the revelation that the Massachusetts Institute of Technology’s (MIT) Media Lab director, Joichi Ito, had knowingly accepted money from the late Jeffrey Epstein. The lede reads: “It is hard to defend soliciting donations from the convicted sex offender Jeffrey Epstein. But Lawrence Lessig, a Harvard Law professor, has been trying.”

In his suit, Lessig says the headline and the lede misrepresented what he had written in an essay published on Medium on September 8, 2019. “Defendants published their headline and lede despite their both being the exact opposite of what Lessig had written and despite being told expressly by Lessig pre-publication that they were contrary to what he had written. When Lessig brought the matter to Defendants attention post-publication, they refused to remove or edit their headline and lede to reflect the truth.”

→ Read the complaint. (Howard M. Cooper, attorney for Plaintiff)

Babson College Fires Professor Over Facebook Post Criticizing Trump Threat to Bomb Iran Cultural Sites

This from a post by Adam Steinbaugh over at FIRE:

At Babson College, the climate of freedom of expression feels like 2003 all over again. Today, the college announced its completion of a “thorough investigation” — which started yesterday — into an adjunct professor’s Facebook post. As a result of its investigation, the college has terminated the professor.

The professor’s post was a response to President Trump’s tweeted threat to target 52 Iranian sites, including cultural sites — a threat that drew criticism and eventual disavowal following commentary that the threat, if carried out, would constitute a war crime. Asheen Phansey, an adjunct professor and staff member at Babson College, posted on his personal Facebook page:

That drew the attention of a local gossip blog, which published screenshots of Phansey’s post, leading to critics on Twitter to call on the college to take action[.]

. . .
It strains credulity to read Phansey’s post as sincerely advocating violence. In political rhetoric, figurative and hyperbolic language have been familiar tools for centuries, and Phansey’s post is quite obviously a criticism — not endorsement — of threats of violence, mixed with snark about American culture. 

For argument’s sake, even after stripping Phansey’s post of its obvious intent, it still does not amount to unprotected speech. As we explained in a letter FIRE sent to Babson president Stephen Spinelli this afternoon, Phansey’s post simply cannot be characterized as either a “true threat” or “incitement,” which are not considered protected speech:

First, because the statement does not purport to commit Phansey to any action, it cannot amount to “a serious expression of an intent to commit an act of unlawful violence[.]” Virginia v. Black, 538 U.S. at 359. Second, the “particular . . . group of individuals” identified in Phansey’s post—the Kardashians and Mall of America—reveal the sardonic tone, depriving the post of the “serious” nature necessary to remove it from its default status as protected speech.

Second, Phansey’s post is better analyzed under the incitement standard, as it (if read literally, and deprived of its context) purports to call upon Iran to issue a threat to attack particular American cultural institutions in response to President Trump’s threat. Yet even if the post had sincerely encouraged Iran to attack the United States, “mere advocacy of the use of force or violence does not remove speech from the protection of the First Amendment.” Claiborne Hardware Co., 458 U.S. at 927 (emphasis in original). To amount to incitement, the speech would not only advocate unlawful force, but must also be “likely to incite or produce” imminent lawless action. Brandenburg, 395 U.S. at 447. Simply put, there is no reasonable likelihood that Phansey’s private post to his Facebook friends would lead to Iran threatening to bomb the Kardashians’ residence.

And while Babson College is a private institution, and thus not bound by the First Amendment, it does promise its faculty and students that Babson College will respect their freedom of expression. We know that from its faculty handbook, which adopts the AAUP’s 1940 Statement of Principles, under which extramural statements such as these are insufficient to justify terminating faculty members. We also know it from other statements in its student policies, on its website, and from our experience in defending conservative students who faced punishment for celebrating Trump’s 2016 election. In that case, Babson ultimately protected freedom of expression. But not this time.

Do Officials Who Block People on Social Media Violate the First Amendment? Pro & Con Arguments

In this piece for the Philadelphia Inquirer Devin Watkins (an attorney at the Competitive Enterprise Institute) defends the position that there is NO First Amendment violation when officials block accounts on social media. On the other side, Daniel Ortner (an attorney with Pacific Legal Foundation) argues that there IS a First Amendment violation. A version of this exchange first appeared at InsideSources.com

Related: On Jan. 22, the First Amendment Salon and the Floyd Abrams Institute will host an exchange between Jameel Jaffer and Noah Feldman in a program titled “Trump, Twitter & The First Amendment.” The exchange will be moderated by Francesca Procaccini. Though the New York and Washington, D.C., salons are by invitation only, they are video recorded and subsequently posted here.

Volokh Video: The First Amendment and Privacy

"The First Amendment and Privacy," Episode 9 of Free Speech Rules, a video series by Professor Eugene Volokh and Austin Bragg hosted on Reason.com:

When can the law stop you from saying things about me in order to protect my privacy? Pretty rarely, it turns out.

Let's just make clear what kind of "privacy" we're talking about. The Supreme Court has sometimes discussed a "right to privacy," but that's generally a right to personal autonomy—for instance, the right to buy and use contraceptives. We're not talking about that right here.

We also often have a right to physical privacy in the sense of freedom from trespass or surveillance. The Fourth Amendment, for example, protects us against "unreasonable searches and seizures" by the government. The law of trespass protects us against physical intrusions by our neighbors.

The tort of "intrusion upon seclusion" protects us from other kinds of surveillance, such as people photographing into our bedrooms using high-powered magnifying lenses or people telephoning us repeatedly in the middle of the night. We're not talking about that here, either.

Rather, we're talking about "informational privacy"—restrictions on communicating information about me when I think that information is highly private.

The five rules of free speech and privacy are set out in the remainder of the video.

"Do Robots Dream of First Amendment Speech?"

This from an article in NW Lawyer by Lisa Manfield profiling myself and David Skover's book "Robotica: Speech Rights and Artificial Intelligence." The article is based on an interview with Professor Skover.

Within a historical context, several patterns relating to speech theory emerge.

First, no communications technology is likely to overtake its predecessor unless its utility is great. For example, the Gutenberg Bible and other printed books eclipsed scripted documents because of their greater cost-effectiveness and functionality.

Second, if a new communications technology has great utility, it may promote values that eclipse those of its predecessors. To illustrate, the printing press helped foment the Protestant Reformation, which in turn challenged the religious dominance of the Catholic Church in Western Europe.

Third, governmental censorship is likely to push back against new communications technologies in the interest of preserving established values and power structures; hence the Catholic Church censored heretical books, controlled printing presses, and persecuted dissenters.

Nevertheless, when its utility is substantial, a new communications technology will likely override censorial efforts. Thus, despite the Catholic Church’s Index of Forbidden Books and inquisition, the non-religious book industry grew and thrived.

Reporters Committee's 2020 Freedom of the Press Awards

From the Reporters Committee announcement:

[Last week] the Reporters Committee for Freedom of the Press announced its 2020 Freedom of the Press Award recipients. They were:

• Ted Boutrous, media law attorney and partner at Gibson, Dunn & Crutcher LLP
• Julie K. Brown, investigative journalist for The Miami Herald
• Amal Clooney, co-founder and president, Clooney Foundation for Justice
• Jane Mayer, staff writer and chief Washington correspondent for The New Yorker

The Reporters Committee annually recognizes the accomplishments of leaders in the news media and legal fields whose work embodies the values of the First Amendment through its prestigious Freedom of the Press Awards.