Washington Update

First Amendment Lawyers Association Quebec City – July 17-20, 2019

Bob Corn-Revere Ronnie London The First Amendment in the Supreme Court October 2018 Term The 2018 Supreme Court Term

66 cases argued  Unanimous (38%)  8-1 or 7-1 (6%)  7-2 or 6-2 (11%)  6-3 or 5-3 (18%)  5-4 (27%)  4-4 (1%) Is this your new swing vote?

Now, it really is the Roberts Court First Amendment Track Record

 52 speech and press cases since 2005  Roberts authored 15 opinions – more than twice as many as Justice Kennedy (7).  8 claims sustained; 7 denied.  7 cases upholding First Amendment rights since 2010. Decided Cases

 Nieves v. Bartlett, 139 S. Ct. 1715 (May 28, 2019)

 Iancu v. Brunetti, 2019 WL 2570622 (June 24, 2019)

 Rucho v. Common Cause/Lamone v. Benesek, 2019 WL 2619470 (June 27, 2019)

 Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921 (June 17, 2019)

 Food Mktg. Inst. v. Argus Leader Media, 2019 WL 2570624 (June 24, 2019)

 Fourth Est. Pub. Ben. Corp. v. Wall-Street.com, LLC, 139 S. Ct. 881 (Mar. 4, 2019)

 Am. Legion v. Am. Humanist Ass’n, 2019 WL 2527471 (June 20, 2019) Nieves v. Bartlett, No. 17-1174 (May 28, 2019)

 Whether probable cause defeats a First Amendment retaliatory-arrest claim under 42 U.S.C. § 1983.

 Yes.

 Roberts, joined by Breyer, Alito, Kagan, Kavanaugh and Thomas (in part).

 Thomas, concurring and dissenting.

 Gorsuch, concurring in part, dissenting in part.

 Ginsburg, concurring in the judgment in part, dissenting in part.

 Sotomayor, dissenting. Arctic Man Arrest

Arctic Man … “an event known for both extreme sports and extreme alcohol consumption.” Nieves v. Bartlett, 139 S. Ct. 1715 (May 28, 2019)

6-3: The plaintiff pressing a retaliatory arrest claim must plead and prove the absence of probable cause for the arrest. . . . Absent such a showing, a retaliatory arrest claim fails.

E.g., Vocal critic of police singled out for jaywalking arrest.

Narrow exception: “The no-probable cause requirement should not apply when a plaintiff presents objective evidence that he was arrested when otherwise similarly- situated individuals are not engaged in the same sort of protected speech had not been.” Objective inquiry. Nieves v. Bartlett, 139 S. Ct. 1715 (May 28, 2019)

Exception for discriminatory discretionary arrests “has no basis in either the common law or in our First Amendment precedents.”

Justice Thomas, concurring in part, dissenting in part.

. “[N]o common law tort for retaliatory arrest in violation of the freedom of speech existed when § 1983 was enacted [in 1871].”

. “This overbroad exception … is likely to encourage protracted litigation about which individuals are ‘similarly situated.’” Nieves v. Bartlett, 139 S. Ct. 1715 (May 28, 2019)

“If the state could use these laws not for their intended purposes but to silence those who voice unpopular ideas, little would be left of our First Amendment liberties.”

Justice Gorsuch, concurring in part, dissenting in part. . Probable cause may relate to tort of false arrest but not address situation where police make a lawful arrest for an unconstitutional reason. First Amendment provides different protections than the Fourth Amendment. Compare to Equal Protection.

. Consider probable cause as part of causation analysis – weak or delayed showing strengthens case for retaliation. Nieves v. Bartlett, 139 S. Ct. 1715 (May 28, 2019)

“Arrest authority … can be abused to disrupt the exercise of First Amendment speech and press rights. See, e.g., Lacey v. Maricopa Cty.”

Justice Ginsburg, concurring in the judgment in part, dissenting in part.

. Mt. Healthy City Bd. of Educ. v. Doyle strikes the right balance: Plaintiff must show unconstitutional animus was a motivating factor for the arrest, then burden shifts to government to show arrest would have happened anyway.

. Dismissal was proper for one officer where there was no evidence of animus, but not for the other, where some evidence existed. Nieves v. Bartlett, 139 S. Ct. 1715 (May 28, 2019)

“There is no basis in § 1983 or in the Constitution to withhold a remedy for an arrest that violated the First Amendment solely because the officer could point to probable cause that some offense, no matter how trivial or obviously pretextual, has occurred.”

Justice Sotomayor, dissenting.

. Normal rules governing retaliation claims under Mt. Healthy should apply. “[P]robable cause to believe that someone was a serial killer would defeat any First Amendment retaliatory arrest claim – even if … there were evidence that the officers also detested the suspect’s political beliefs.”

. Majority “arbitrarily fetishizes one type of motive evidence – treatment of comparators – at the expense of other modes of proof.” What about photos from the scene, or body cameras? Cited NPPA amicus brief. Iancu v. Brunetti, 2019 WL 2570622 (June 24, 2019)

 Whether Section 2(a) of the Lanham Act’s prohibition on the federal registration of “immoral” or “scandalous” marks is facially invalid under the free speech clause of the First Amendment.

 Yes.

 Kagan, joined by Ginsburg, Alito, Thomas, Gorsuch, Kavanaugh.

 Alito, concurring.

 Roberts, concurring in part, dissenting in part.

 Breyer, concurring in part, dissenting in part.

 Sotomayor, concurring in part, dissenting in part, joined by Breyer. Iancu v. Brunetti, 2019 WL 2570622 (June 24, 2019)

 “[T]he ‘immoral or scandalous’ criterion in the Lanham Act … is viewpoint-based.”

 “The meanings of ‘immoral’ and ‘scandalous’ are not mysterious …. Put the pair of overlapping terms together and the statute, on its face, distinguishes between two opposed sets of ideas: those aligned with conventional moral standards and those hostile to them[.]” Iancu v. Brunetti, 2019 WL 2570622 (June 24, 2019)

 “[T]he government invokes our First Amendment overbreadth doctrine, and asks us to uphold the statute … because its unconstitutional applications are not ‘substantial’ relative to [its] plainly legitimate sweep. But … this Court has never applied that kind of analysis to a viewpoint-discriminatory law.”

 “Once we have found that a law ‘aims at the suppression of’ views,’ why would it matter that Congress could have captured some of the same speech through a viewpoint- neutral statute?”

 “Viewpoint discrimination is poison to a free society.” Iancu v. Brunetti, 2019 WL 2570622 (June 24, 2019)

 But …. First Amendment trademark law can still be FUCT:

 “We say nothing at all about …, in the Government’s more concrete description, a statute limited to lewd, sexually explicit, and profane remarks.”

 “Our decision does not prevent Congress from adopting a more carefully focused statute that precludes the registration of marks containing vulgar terms that play no real part in the expression of ideas.”

 “The particular mark in question in this case could be denied registration under such a statute.” Iancu v. Brunetti, 2019 WL 2570622 (June 24, 2019)

 “[I]t is equally possible to read [the] bar on the registration of ‘scandalous’ marks to address only obscenity, vulgarity, and profanity” to “save that duly enacted legislative text by rendering it a reasonable, viewpoint-neutral restriction that is permissible in the context of a beneficial governmental initiative like the trademark registration system.”

 “The word ‘scandalous’ … is ambiguous” and “I … interpret the term to allow the PTO to restrict … the small group of lewd [ ] or ‘swear’ words that cause a visceral reaction, that are not commonly used around children.” Iancu v. Brunetti, 2019 WL 2570622 (June 24, 2019)

 “I agree with the majority that the ‘immoral’ portion … is not susceptible of a narrowing construction that would eliminate its viewpoint bias.”

 “As Justice Sotomayor explains, however, the ‘scandalous’ portion … is susceptible to such a narrowing construction to … bar only marks that offend because of their mode of expression, marks that are obscene, vulgar or profane.”

 “The First Amendment protects the freedom of speech; it does not require the Government to give aid and comfort to those using obscene, vulgar and profane modes of expression.” Iancu v. Brunetti, 2019 WL 2570622 (June 24, 2019)

 “I agree with Justice Sotomayor …

 “I would place less emphasis on trying to decide whether the statute … should be categorized as … ‘viewpoint discrimination,’ ‘content discrimi- nation,’ ‘commercial’ speech,’ ‘government speech’ or the like.

 I believe we would do better to treat this Court’s speech-related categories not as outcome- determinative rules, but as rules of thumb” and “would ask whether the regulation at issue works speech-related harm … out of proportion to is justifications.” Am. Legion v. Am. Humanist Ass’n, 2019 WL 2527471 (June 20, 2019)

 Whether the Establishment Clause requires removal or destruction of a 93-year-old memorial to American servicemen who died in World War I solely because the memorial bears the shape of a cross.

 No.

 Alito, joined by Roberts, Kavanaugh, Breyer, and Kagan (in part).

 Kavanaugh, concurring

 Breyer, concurring, joined by Kagan

 Kagan, concurring in part.

 Thomas, concurring in the judgment.

 Gorsuch, concurring in the judgment, joined by Thomas.

 Ginsburg, dissenting, joined by Sotomayor. Am. Legion v. Am. Humanist Ass’n, 2019 WL 2527471 (June 20, 2019)

Plurality announces new test to replace Lemon v. Kurtzman (1971) where religious symbols are used for ceremonial or commemorative purposes: Longstanding monuments, symbols, or practices are presumed constitutional.

. Hard to identify original purpose for old monuments

. Additional associations with symbols made over time

. Message may change over time: familiarity supports preservation

. Tearing down monuments would be viewed as hostile to religion

But: This would not necessarily support new monuments. Justice Alito Am. Legion v. Am. Humanist Ass’n, 2019 WL 2527471 (June 20, 2019)

“As I see it, when a cross is displayed on public property, the government may be presumed to endorse its religious content.”

Justices Ginsburg and Sotomayor dissent

“An exclusively Christian symbol, the Latin cross is not emblematic of any other faith.

The principal symbol of Christianity around the world should not loom over public thoroughfares, suggesting official recognition of that religion’s paramountcy.” Rucho v. Common Cause/Lamone v. Benesek, 2019 WL 2619470 (May 28, 2019)

 (1) Whether plaintiffs have standing to press their partisan gerrymandering claims;

 (2) Whether plaintiffs’ partisan gerrymandering claims are justiciable;

 (3) Whether challenged congressional maps are, in fact, an unconstitutional partisan gerrymander.

 No, on (2), rendering (1) and (3) irrelevant.

 Roberts, joined by Thomas, Alito, Gorsuch and Kavanaugh.

 Kagan, dissenting, joined by Ginsburg, Breyer and Sotomayor. Rucho v. Common Cause/Lamone v. Benesek, 2019 WL 2619470 (May 28, 2019) “We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts. Federal judges have no license to reallocate political power … with no plausible grant of power in the Constitution, and no direct legal standards to direct their decisions.”

 “Here, … the Constitution provides no basis whatever to guide the exercise of judicial discretion.”

 “To hold that legislators cannot take partisan interests into account when drawing district lines would essentially countermand the Framers’ decision to entrust districting to political entities.”

 “[T]he First Amendment analysis below offers no ‘clear’ and ‘manageable’ way of distinguishing permissible from impermissible partisan motivation.” Rucho v. Common Cause/Lamone v. Benesek, 2019 WL 2619470 (May 28, 2019)

“For the first time ever, this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities.”

 “[T]he gerrymanders here debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people.”

 “The majority concedes (really, how could it not?) that gerrymandering is ‘incompatible with democratic principles.’ And therefore what? That recognition would seem to demand a response.” Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921 (June 17, 2019)

 (1) Whether the 2nd Circuit erred in rejecting the Supreme Court’s state actor tests and instead creating a per se rule that private operators of public access channels are state actors subject to constitutional liability;

 (2) Whether the 2nd Circuit erred in holding … that private entities operating public access television stations are state actors for constitutional purposes where the state has no control over the private entity’s board or operations.

 Yes, corporation operating public access channels is not a state actor.

 Kavanaugh, joined by Roberts, Thomas, Alito and Gorsuch.

 Sotomayor, dissenting, joined by Ginsburg, Breyer and Kagan. Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921 (June 17, 2019)

“In short, operating public access channels on a cable system is not a traditional, exclusive public function[.]”

“New York City secured a property interest in public access cable channels to be made open to the public on terms that render them a public forum. … MNN stepped into the City’s shoes and thus qualifies as a state actor, subject to the First Amendment like any other.” Food Mktg. Inst. v. Argus Leader Media, 2019 WL 2570624 (June 24, 2019)

 (1) Whether “confidential” in FOIA Exemption 4 requires the government to withhold “commercial or financial information” that is confidentially held and not publicly disseminated—regardless of whether a party establishes substantial competitive harm from disclosure.

 (2) Whether, … if the Supreme Court retains the substantial-competitive- harm test, it is satisfied when requested information could be potentially useful to a competitor, or whether the party opposing disclosure must establish a defined competitive harm like lost market share.

 Yes, on (1), rendering (2) irrelevant.

 Gorsuch, joined by Roberts, Thomas Alito, Gorsuch, Kavanaugh, Kagan.

 Breyer, concurring in part, dissenting in part, joined by Ginsburg and Sotomayor. Food Mktg. Inst. v. Argus Leader Media, 2019 WL 2570624 (June 24, 2019)

“At least where commercial or financial information is both “Release of such information customarily and actually treated as must also cause genuine harm private by its owner and provided to to the owner’s economic or the government under an assurance business interests.” or privacy, [it] is ‘confidential’ within the meaning of Exemption 4.” Fourth Estate Pub. Ben. Corp. v. Wall- Street.com, LLC, 139 S. Ct. 881 (Mar. 4, 2019)

 Whether the “registration of [a] copyright claim has been made” when the copyright holder delivers the application, deposit, and fee to the Copyright Office, as the 5th and 9th Circuits have held, or only once the Copyright Office acts on that application, as held by the 10th Circuit held and, in the decision below, the 11th Circuit.

 Registration occurs when Copyright Office registers the copyright.

 Ginsburg, unanimous. Fourth Estate Pub. Ben. Corp. v. Wall- Street.com, LLC, 139 S. Ct. 881 (Mar. 4, 2019)

 “[R]egistration occurs, and a copyright claim may commenced an infringement suit, when the Copyright Office registers a copyright.”

 “Upon registration of the copyright, however, a copyright owner can recover for infringement that occurred both before and after registration.” McKee v. Cosby, 139 S. Ct. 675 (2019) (Thomas, J., concurring in denial of cert.)

 “New York Times [v. Sullivan] and the Court’s decisions extending it were policy-driven decisions masquerading as constitutional law.”

 “We should not continue to reflexively apply this policy-driven approach to the Constitution. Instead, we should carefully examine the original meaning of the First and Fourteenth Amendments.”

 “If the Constitution does not require public figures to satisfy an actual-malice standard in state-law defamation suits, then neither should we.” Other Notable Developments Assange Prosecution

 March 6 – one count indictment for violating Espionage Act (Assange agreed to assist Manning in cracking a password);

 May 23 – Superseding indictment 18 counts based on soliciting and leaking classified information about Guantanamo Bay, Afghanistan, and Iraq. Alleged violations of 18 U.S.C. §§ 793(b)-(e) and 18 U.S.C. § 1030.

 Act generally requires showing “intent or reason to believe” information will be used to injure U.S. But § 793(e) prohibits possession and communicating national security information with just “reason to believe” it will harm U.S.

Chelsea Manning

Ending Support for Internet Censorship Act

 Interactive computer services will not receive 230 immunity without FTC certification; requires 4/5 vote of Commissioners. 2-year certification.

 Companies must prove by “clear and convincing evidence” they do not “moderate information provided by [third parties] in a manner that is biased against a political party, political candidate, or political viewpoint.”

 Certification can be lost if an officer or employee makes a moderation decision motivated by an intent to harm a party, candidate or political viewpoint. Company must “out” such employees and punish them.

 Public complaint process; right to participate in hearings.

 FTC to charge fee for certification.

Senator Josh Hawley with the President Suing the President

Knight First Amendment Inst. at Columbia Univ. v. Trump, --- F.3d ---, 2019 WL 2932440 (2d Cir. July 9, 2019)

 “[T]he First Amendment does not permit a public official who utilizes a social media account for all manner of official purposes to exclude persons from an otherwise open dialog because they expressed views with which [he] disagrees.”

 In so “acting in a governmental capacity,” the President “may not discriminate based on viewpoint.” Pen Am. Ctr., Inc. v. Trump, No. 1:18-cv-09433-LGS (S.D.N.Y. oral arg. req‘d May 23, 2019) Suing the President

D.C. v. Trump, --- F.3d ---, 2019 WL 2998602 (4th Cir. July 10, 2019) In re Trump, --- F.3d ---, 2019 WL 2997909 (4th Cir. July 10, 2019)

 “The District and Maryland’s interest in enforcing the Emoluments Clauses is so attenuated and abstract that their prosecution of this case readily provokes the question of whether this action against the President is an appropriate use of the courts, which were created to resolve real cases and controversies between the parties. In any event, … the District and Maryland do not have Article III standing to pursue their claims against the President.” FOSTA

Woodhull Freedom Found. v. U.S., 334 F.Supp.3d 185 (D.D.C. 2018), appeal, No. 18-5298 (D.C. Cir. docketed Oct. 12, 2018)

“The Government . . . contends that plaintiffs’ conduct . . . would not fall within FOSTA’s ambit. **** I agree with the Government.”

 Oral argument scheduled for Sept. 20, 2019 CTIA – The Wireless Ass’n v. City of Berkeley, 2019 WL 2750838 (9th Cir. July 2, 2019)

 “We [] hold that the governmental interest in furthering public health and safety is sufficient under Zauderer” and “do not foreclose that other substantial interests in other cases may suffice as well. ”  “We answer the question avoided in American Meat, holding that Zauderer requires that the compelled disclosure further some substantial—that is, more than trivial—governmental interest. Central Hudson explicitly requires that a substantial interest be furthered by a challenged regulation prohibiting or restricting commercial speech.”  “To use the words of the Supreme Court, ‘Disclosures must remedy a harm that is potentially real not purely hypothetical.’” HHS-CMS DTC Pharma Ad Disclosures Merck & Co., Inc. v. HHS, 2019 WL 2931591 (D.D.C. July 8, 2019)

 “HHS lacks the statutory authority under the Social Security Act to adopt the WAC Disclosure Rule. Neither the Act's text, structure, nor context evince an intent by Congress to empower HHS to issue a rule that compels drug manufacturers to disclose list prices.”  “In view of this holding, the court does not reach Plaintiffs’ First Amendment challenge.” See you in San Juan!