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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.

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