First Amendment Lawyers Association

FALA 2017 Summer Meeting

July 19, 2017 through July 22, 2017 @ Royal Sonesta Harbor Court, 550 Light St, Baltimore, MD 21202

Theme: The First Amendment - This is not a Safe Space: The Case for Free Speech and Debate in the Age of Thin Skin

First Amendment Advocates and Attorneys often find themselves speaking up for the most controversial speakers, after all, the First Amendment is not meant to protect polite speech. In 2017, controversial speakers have been met with violence and outrage on college campuses and elsewhere. This summer’s meeting brings a blend of speakers that range from Free Speech Absolutists to speakers who see some forms of censorship as necessary. This meeting symbolizes the case for Free Speech and Debate, even among First Amendment advocates. Because we can’t expect others to tolerate people they don’t agree with, unless we have the ability to listen to some of our “opponents” ourselves.

Wednesday, July 19, 2017

6:30 P.M. to 8:30 P.M.

Please join us this evening to meet and mingle with friends and make new ones. Guests and family are welcome!

Thursday, July 20, 2017

8:00 A.M. Breakfast (Guests Invited) ​ ​ 8:25 A.M. President’s Welcome ​ 8:30 A.M.

1.0 Free Speech in Peril - the New Anti-Hate-Speech Law in Germany - Dr. Daniel Koetz ​ Free Speech is targeted intensively in Germany. “Hate Speech” is the buzz word that lawmakers love to use to limit Free Speech, just as “Youth Protection” was a while back. The German Minister of Justice’s draft of a law against “Hate Speech” and “Fake News” was passed this month – against a multitude of critical comments by the United Nations’ special rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression. The law aims

to kill free speech on the internet. Will Germans, and other democracies, accept laws against ​ ​ Hate Speech? Are laws against Hate Speech unconstitutional in Germany? Will Hate Speech laws spread to other countries?

9:30 A.M.

2.0 The Decline of Free Speech on the Postmodern Campus: The Troubling Evolution of the Heckler’s Veto - Professor Kenneth Lasson ​ The Twenty-first century has presented new challenges to the traditional ways that free speech has been encouraged and protected – particularly on university campuses. Speakers who challenge campus orthodoxies are rarely invited, and increasingly disinvited when called, or shouted down or otherwise disrupted. The “heckler’s veto” has given way to new devices like “trigger warnings” and “safe spaces” so that students can be sheltered from the give-and-take of discussion and debate. Speech codes that substantially limit First Amendment rights are widespread. What can be done in this environment to safeguard time-honored constitutional protections of free speech?

10:30 A.M.

3.0 Championing Free Speech & Anti-SLAPP Legislation - Senator Lawrence M. Farnese Jr. - PA State Senate

Focused on protecting the rights of people and organizations against frivolous lawsuits aimed at stifling free speech, state Sen. Lawrence (“Larry”) Farnese (D-Philadelphia) championed and sponsored Senate Bill 95, which would prevent SLAPP suits (Strategic Lawsuits Against Public Participation.) If Farnese’s legislation becomes law, it would set up a procedure to quickly determine if a lawsuit is frivolous, or a SLAPP. “We have allowed well-financed entities to use fear to silence well-intentioned civic and neighborhood groups by threatening them with these ridiculous and expensive SLAPP lawsuits,” said Farnese. If passed by the House of Representatives, Pa would join 27 other states with some form of anti-SLAPP protections. Please join us for this very special presentation.

11:30 A.M.

4.0 They Won’t Stop at BackPage - Women, Agency, and the War Against Sex Trafficking - Elizabeth Nolan-Brown

The crusade against “sex trafficking” has united feminists and conservative right wingers and will not end with the takedown of Backpage. How did denying that women have agency to make their own decisions unite such seemingly opposing circles? As Ms. Nolan-Brown points out, the war on drugs paved the way: “[E]ven as the drug war's failures and costs become more

apparent, the Land of the Free is enthusiastically repeating the same mistakes when it comes to sex trafficking. This new "epidemic" inspires the same panicked rhetoric and punitive policies the war on drugs did—often for activity that's every bit as victimless.” We know they won't stop at Backpage, so what's next on the agenda?

12:30PM to 1:30 PM - Break for Lunch

1:30

5.0 The Cambria Ethics Hour - Paul Cambria

What are some recent ethical issues First Amendment Attorneys face? An FALA tradition, Paul Cambria challenges us with hypothetical scenarios taken from recent ethics opinions.

Friday, July 21, 2017

8:00 A.M. Breakfast (Guests Invited) ​ ​ 9:00 A.M.

6.0 Employee or Independent Contractor? The National Labor Relations Board and Title ​ VII Charges - Matt Hoffer ​ Does misclassifying a dancer or performer as an independent contractor a form of unlawful discrimination? Some have argued that it keeps them from having the protection to engage in concerted activity. Does it? This thirty minute presentation is by special request from members who represent adult entertainment companies.

9:30 A.M.

7.0 - Title IX and Free Speech - Chris Perry, Ronald K. Henry, and Joe Cohn

Has the evolution of Title IX enforcement in recent years threatened freedom of speech on college campuses? In April 2011, the U.S. Department of Education issued a “Dear Colleague” letter that asserted the existence of detailed obligations for higher education institutions related to allegations of sexual assault and sexual harassment, including forms of speech. The Department took the position that a wide range of conduct and speech constituted forms of gender discrimination and thus violated Title IX. Subsequent guidance documents have asserted additional obligations and numerous institutions have entered into “settlements” imposing still more obligations. In the six years since the initial “Dear Colleague” letter, schools have implemented wide-ranging policies and procedures that many observers view with concern both as deprivations of protected rights, including rights of free speech, and as deprivations of due process and equal protection for accused individuals. The panel will discuss the

Department’s guidance and enforcement actions, the responses of courts in actions brought against educational institutions, and discernable trends in the Title IX challenges to First Amendment protections.

10:30 AM

Inside the Beltway: First Amendment Cases in the Supreme Court and What to Expect from Justice Gorsuch - Bob Corn-Revere and Ronald London ​ Please join us for this Washington update with top-notch legal analysis of policy and US Supreme Court cases that have been recently decided along with cases the US Supreme Court may be hearing next.

8.0

The Naomi Wilzig Memorial Presentation:

11:30 A.M.

9.0 The American Civil Liberties Union, Progressivism, and Free Speech

Do contemporary progressives subordinate free speech to competing values? The ACLU is by many accounts a “progressive organization” that defends civil liberties, including the right to Free Speech. Are there times when progressive organizations, like the ACLU, turn their backs on civil liberties to appeal to donors? Does the ACLU temper its agenda to protect civil liberties based on politics? This panel brings together two competing voices from across the aisle to discuss modern day progressivism and free speech, while reflecting on the ACLU’s work and history as an organization.

Panelists: Wendy Kaminer and Lee Rowland

Moderator: LaTeigra Cahill

Saturday, July 22, 2017

8:00 A.M. Business Meeting ​ 9:00 A.M.

10.0 Jury Nullification and the First Amendment - Kirsten Tynan ​ Jury nullification and many of our First Amendment guaranteed rights have been intertwined for centuries, dating back even before the American Revolution. In notable cases throughout history, jurors have refused to convict defendants for breaking laws against speech, assembly, religion, or press freedom. On the flip side, juror rights educators also use their expressive rights

to fully inform jurors about jury nullification. But courts and prosecutors are working aggressively to silence juror rights educators and keep jurors in the dark.

This year alone, there have already been multiple battles in court over the right to share jury nullification information outside courthouses. This continues a trend in recent years of government bullying and intimidation against jury nullification pamphleteers in Florida, New York, North Carolina, Montana, Pennsylvania, New Jersey, and elsewhere. Will government attacks finally shut up juror rights educators ? With historic and modern examples, Kirsten Tynan gives a brief history of jury nullification and the First Amendment, followed by assessment of the current state of these attacks against juror rights education and how to fend them off.

10:00AM

11.0 - ABA Model Rule 8.4(g): the Attorney Speech Code And Why it Violates the First ​ Amendment (and what should we do about it) (Ethics Credit and Elimination of Bias Credit) - Zachary S. Greenberg ​

At its 2016 Annual Convention, the ABA added a new subsection to the attorney misconduct rule, recommending professional discipline for engaging in “conduct related to the practice of law” that a “lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age sexual orientation, gender identity, marital status or socioeconomic status.”

“Conduct related to the practice of law” includes “representing clients; interacting with witnesses, coworkers, court personnel, lawyers and others while engaged in the practice of law; operating or managing a law firm or law practice; and participating in bar association, business or social activities in connection with the practice of law.” Many have criticized the proposed rule, and some state bars have already rejected it. What is wrong with the rule, constitutionally and functionally? Will this actually lead to more discriminatory conduct, rather than less? ​ ​ What should FALA members do about it, if anything?

11:00 AM

12.0 - Ethical Limits of First Amendment Lawyering: Do We Have a Duty Not to Make Certain Arguments? - Morgan Weiland (Ethics Credit) ​ ​ Scholars have been writing for years about the problematic nature of emerging and novel First Amendment speech arguments. Consider Frederick Schauer’s notion of "First Amendment opportunism," the strategic application of speech claims to seemingly non-core speech questions. Related, I argue in an article published this year that certain commercial and corporate speech arguments theoretically threaten our core normative commitments to free

expression -- individual autonomy and collective self-governance. If these concerns have merit, then ought there be limitations to the type of First Amendment arguments that we make? More broadly, do lawyers have an ethical obligation not only to their clients, but also to the coherence and integrity of the law?

12:00

13.0 - Religious Free Exercise and Liberty of Conscience - Ed Rudofsky and Reed Lee ​

What is the constitutional line between religious free exercise and what is merely a philosophical personal preference? Are there differences in State Constitutions? Many State Constitutions and statutes expressly protect “liberty of conscience.” Early charters, enactment and cases equated “liberty of conscience” with freedom from religious persecution, but in Bd. of Ed. of Island Trees Union School District No. 26 v. Pico, 457 U.S. 853 (1982), the U.S. Supreme Court explained that “liberty of conscience” refers to “the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.” This presentation will explore what religious free exercise means in 2017, what “liberty of conscience” refers to in our times, and what rights, not expressly enumerated, may be subsumed and protected by it.

1:00 Adjourn

Total number of 60-minute CLE hours:

General: 14.0

Ethics: 3.0

Professionalism: 1.0

Total: 14.0*

*Incorporated is 2 hours of Elimination of Bias

Speaker Biographies

Elizabeth Nolan Brown is an associate editor at Reason, where she covers sex policy, criminal justice, First Amendment issues, food regulation, millennial politics, moral panics, women's health care and labor issues. Her writing has also appeared in outlets such as Politico, Playboy, the Los Angeles Times, The Daily Beast, Fox News, The Week, The Dish, and Time magazine. In 2016, her Reason cover story (excerpted above) "The War on Sex Trafficking Is the New War ​ on Drugs" earned the Western Publishing Association's "Maggie" award for best feature article ​ ​ and took third in the Southern California Journalism Awards best-feature category.

LaTeigra Cahill is an Associate Attorney at Randazza Legal Group, PLLC (“RLG”), a First ​ Amendment and Intellectual Property law firm founded by Marc Randazza and headquartered in Las Vegas, Nevada. Prior to joining RLG, Ms. Cahill worked for five years at DNA-People’s Legal ​ Services, a mid-size public interest law firm that promotes tribal sovereignty. Ms. Cahill was also an Adjunct Professor at San Juan College in Northern New Mexico, where she taught Federal Indian Law and the Federal Rules of Evidence. She graduated from University of California Hastings College of the Law.

Paul Cambria is a nationally recognized criminal defense and First Amendment attorney. Mr. ​ Cambria has built a strong reputation for successfully representing individuals and businesses in complex, high-profile cases at all levels of the courts, including state, federal, and the United States Supreme Court. He has represented many prominent individuals, including the publisher Larry Flynt and musicians DMX and Marilyn Manson.

Joe Cohn, FIRE’s Legislative and Policy Director, is a 2004 graduate of the University of Pennsylvania Law School and the Fels Institute of Government Administration, where he earned his Juris Doctor and master’s in Government Administration. Prior to law school, Joe attended the University of Nevada at Las Vegas (UNLV), where he graduated cum laude and co-founded the university’s ACLU chapter. A former staff attorney for the United States Court of Appeals for the Third Circuit and law clerk in the Philadelphia Court of Common Pleas, Joe joined FIRE having demonstrated a career-long dedication to advancing the cause of civil liberties. He has served as a staff attorney at the AIDS Law Project of Pennsylvania, where his work earned him accolades from The Legal Intelligencer and Pennsylvania Law Weekly (“2007 Lawyer on the Fast Track”) in 2007 and from Super Lawyers magazine (“Rising Star”) in 2008. In 2010, Joe taught at the University of Pennsylvania Law School as an adjunct professor, where he lectured on good trial practices and supervised law students as they represented real clients in both state and federal courts. Just prior to joining FIRE, Joe served as the interim legal director for ACLU affiliates in Nevada and Utah. Joe is a member of FALA and the son of FALA member Allen Lichtenstein. ​

Senator Larry Farnese (D-Philadelphia) was first elected to the Pennsylvania State Senate in ​ ​ 2008 and reelected to his third term in 2016 to represent the First Senatorial District. The Senator was elected in 2014 and 2016 to serve as the Senate Democratic Caucus’ Secretary. He also serves as the Democratic Chairman of the Senate Community, Economic and Recreational Development Committee and is a member of the Banking and Insurance, Consumer Protection and Professional Licensure, Judiciary, Rules and Executive Nominations, and Transportation Committees. He holds a membership position with the Pennsylvania Housing Advisory Committee and serves on the boards of the Pennsylvania Historical Society and Casa Farnese, the first affordable senior housing complex in Philadelphia. Larry is widely recognized as a defender of neighborhood associations thanks to his SLAPP legislation protecting them against frivolous lawsuits. The Senator lives in Center City Philadelphia.

Zachary S. Greenberg is a second-generation FALA member, a graduate of Syracuse University School of Law, and is a First Amendment advocate working for the Foundation for Individual Rights in Education.

Ronald K. Henry is a graduate of the University of Michigan Law School. He is a lawyer in Washington, DC with a focus on protection of civil liberties. He is a member of the American Law Institute where he devotes particular attention to the protection and preservation of due process in ALI projects related to civil and criminal matters.

Matt Hoffer is an attorney at Shafer & Associates in Lansing, MI. He focuses his practice on ​ employment law, particularly representing adult entertainment clubs. Mr. Hoffer has defended employers in multiple wage-and-hour suits.

Wendy Kaminer is a lawyer and social critic, she writes about law, liberty, feminism, religion, ​ ​ ​ and popular culture. Her latest book is Worst Instincts: Cowardice, Conformity and the ACLU, (Beacon Press.) A former Guggenheim fellow and recipient of the Smith College Medal, she is the author of seven previous books, including Free for All: Defending Liberty in America Today; Sleeping with Extra-Terrestrials: The Rise of Irrationalism and Perils of Piety; True Love Waits: Essays and Criticism; It’s All the Rage: Crime and Culture; I’m Dysfunctional, You’re Dysfunctional: The Recovery Movement & Other Self-Help Fashions; and A Fearful Freedom: Women’s Flight from Equality.

Her articles and reviews, dating back to the 1980s, have appeared in numerous publications including The New York Times, The Atlantic Monthly, The Wall Street Journal, The Village Voice, The American Prospect, Dissent, The Nation, The Wilson Quarterly, Free Inquiry, Slate.com, thefreeforall.net and spiked-online.com. Her commentaries have aired on National Public Radio.

Before embarking on her writing career, Ms. Kaminer briefly practiced law, as a criminal defense attorney for the New York Legal Aid Society and a staff attorney in the New York City Mayor's Office. Law has remained one of her primary subjects, and her writings on such apparently disparate topics as feminism, criminal justice, free speech, religion, spirituality, and popular culture are shaped by common concerns for liberty, individualism, ethics, and rationality. A former board member of the American Civil Liberties Union, Kaminer is an ardent civil libertarian and currently serves on the advisory boards of the Foundation for Individual Rights in Education and the Secular Coalition for America.

Dr. Daniel Koetz is a media lawyer based in Duesseldorf, Germany. As one of the few ​ ​ European members of FALA and as a certified specialist in copyright, media, and intellectual property law, Dr. Koetz brings a unique perspective regarding the meaning of free speech in the global electronic age. He frequently lectures at the University of Magdeburg. He is a Partner at the Law Offices Koetz Fusbahn in Duesseldorf.

Professor Kenneth Lasson is a First Amendment scholar and Constitutional law professor. He has published numerous books and influential law review articles on the First Amendment and free speech, including but not limited to Political Correctness Askew: Excesses in the Pursuit of Minds and Manners, 63 Tenn. L. Rev. 689 (1996) and Feminism Awry: Excesses in the Pursuit of Rights and Trifles, 42 J. Legal Educ. 1 (1992). He is a law professor at the University of Baltimore.

Reed Lee is a litigator who has focused his practice on free speech and constitutional issues for ​ over 20 years. His free expression work has involved representation of clients ranging from political activists of widely varying points of view to those who produce and disseminate sexually oriented expression. He has written Amicus Briefs at the Supreme Court of the United States and has argued numerous appeals. He has also acted as defense counsel in criminal obscenity jury trials, with the late Michael Null, involving both live performances and recorded performances. He lives in Chicago.

Ronald London represents clients regarding First Amendment, media and communications, privacy, advertising, and accessibility matters. This includes advising clients such as online and traditional media providers in matters before federal and state courts and the FCC and FTC, and on general regulatory compliance. He also provides counsel and strategic advice on a broad range of litigation, administrative, enforcement and legislative matters related to communications, the media, and all aspects of consumer privacy. His practice includes Freedom of Information Act matters before the courts and federal agencies as well. Mr. London is Of Counsel at Davis Wright Tremaine LLP.

Christopher J. Perry is a 2004 graduate of Widener University School of Law. He is currently serving as Deputy Executive Director for Stop Abusive and Violent Environments (SAVE). SAVE is a 501(c)(3) organization based in the Washington DC area, focused on shaping legislative policy in the area of campus sexual assault to ensure that due process procedures are utilized. Prior to joining SAVE, Mr. Perry was in private practice for 5 years in southeastern Pennsylvania where he focused primarily on criminal defense.

Robert Corn-Revere is widely considered to be a leading figure in First Amendment law. He particularly excels in First Amendment litigation, and is noted for his strength in regulatory matters affecting traditional media clients. He has extensive experience in First Amendment law and communications, media and information technology law. He regularly counsels clients and serves as litigation counsel in First Amendment, communications, and Internet-related matters. Bob also successfully petitioned Governor George E. Pataki to grant the first posthumous pardon in New York history, to the late comedian Lenny Bruce in a landmark pro bono case. Mr. Corn-Revere is a partner in the Washington, D.C. office of Davis Wright Tremaine LLP.

Lee Rowland is a Senior Staff Attorney with the ACLU’s Speech, Privacy, and Technology Project. Lee has extensive experience as a litigator, lobbyist, and public speaker. She serves as lead counsel in federal First Amendment cases involving public employee speech rights, illegal arrest for reading protected material, and state secrecy surrounding the lethal injection process. She also authors amicus briefs and blogs on topics including the intersection of speech and privacy (e.g., restrictions on mug shots and nudity; the right to be forgotten, copyright injunctions), student and public employee speech, obscenity, and the Communications Decency Act. Lee serves as an adjunct clinical professor for NYU Law’s Technology Law and Policy Clinic, and is a member of the New York Bar Association’s Communications and Media Law Committee. Prior to joining the ACLU, Lee was a voting rights counsel with the Brennan Center for Justice; she previously ran the Reno office of the ACLU of Nevada, where she regularly argued before the Ninth Circuit Court of Appeals and the Nevada Supreme Court.

Edward S. Rudofsky is a highly regarded litigator and appellate advocate with a wealth of practical experience in cases involving commercial and real estate issues, zoning, administrative law, and constitutional questions; has substantial experience counseling non-profit and religious institutions; administers the alternative dispute resolution program of the United Synagogue of Conservative Judaism; and serves as a mediator for the U.S. District Court for the Eastern District of New York. Mr. Rudofsky is a Partner at Zane and Rudofsky in New York City, NY.

Kirsten Tynan is Executive Director of the Fully Informed Jury Association (FIJA). FIJA is a ​ 501(c)3, educational, nonprofit organization dedicated to informing everyone of jurors' full authority, including their right to judge the law and its application in the case before them, and to

vote Not Guilty when a just verdict requires it, even if the law has technically been broken. She recently testified on behalf of FIJA in a lawsuit in federal court brought by FIJA and two co-plaintiffs to permanently enjoin portions of an anti-free speech order at the Lindsey-Flanigan Courthouse in Denver, Colorado that bar people from peacefully sharing FIJA brochures in certain areas in the vicinity of the courthouse.

Morgan N. Weiland is an attorney and PhD candidate at Stanford University specializing in ​ ​ speech, press, and technology law and ethics. She created the first joint degree program between Stanford Law School, where she received her J.D. in 2015, and Stanford’s Communication Department. She is a Junior Affiliate Scholar at SLS’s Center for Internet & Society, and a graduate fellow at Stanford’s McCoy Family Center for Ethics in Society. Weiland will be clerking for the Honorable M. Margaret McKeown on the Ninth Circuit Court of Appeals during the 2018-19 term. She is a member of the California Bar.