Category Archives: First Amendment theory

Michigan Supreme Court, in Case Against Burkman and Wohl, Holds It Is Constitutional to Punish Intentional Lies About When, Where, or How People Vote (Relevant Also to Pending Mackey Case)

I have been arguing that it does not violate the First Amendment to make it a crime to intentionally lie about when, where or how people vote. The Supreme Court suggested as much in the Mansky case in 2018. I made this argument in my Cheap Speech book, and in an amicus brief I filed with Protect Democracy and the Yale Media Freedom and Information Access Clinic in the Doug Mackey Second Circuit case involving his conviction for violating federal law by trying to trick Black voters into voting by text or social media hashtag. (That case was argued in April and awaits decision.)

Last week, the Michigan Supreme Court in People v. Burkman considered whether John Burkman and Jacob Wohl could be constitutionally charged with violating Michigan law for robocalls intended to deter Black voters from voting. The Court held that some election related speech could be criminally punished without violating the First Amendment. It narrowly construed Michigan law in ways that avoided the constitutional problem. Here is the relevant part of the majority opinion on this point:

Because invalidation should be avoided where possible, we offer a limiting construction of MCL 168.932(a)’s catchall “other corrupt means or device” language. Specifically, we hold that when the charged conduct is solely speech and does not fall under any exceptions to constitutional free-speech protections, MCL 168.932(a)’s catchall phrase operates to proscribe that speech only if it is intentionally false speech that is related to voting requirements or procedures and is made in an attempt to deter or influence an elector’s vote. This limiting construction cures the serious and realistic danger that MCL 168.932(a)’s catchall provision infringes constitutional free-speech protections by limiting the statute’s reach to areas where government regulation is constitutionally provided or has been historically upheld. See U.S. Const., art. 1, § 4, cl. 1 (imbuing the states with the authority to regulate the time, place, and manner of congressional elections); Const. 1963, art. 2, § 4(2) (giving the Michigan Legislature the same authority for state elections and also providing the power “to preserve the purity of elections” and “to guard against abuses of the elective franchise”); Minnesota Voters Alliance v Mansky, 585 US 1, 19 n 4; 138 S Ct 1876; 201 L Ed 2d 201 (2018) (“We do not doubt that the State may prohibit messages intended to mislead voters about voting requirements and procedures.”). Intentionally false speech about voting requirements or procedures serves no purpose other than defrauding electors with respect to their franchise. Compare Citizens United, 558 US at 339-340 (discussing the purpose of constitutionally protected political speech).

We reverse the Court of Appeals insofar as it concluded that MCL 168.932(a) was not overbroad, and we offer a limiting construction of the statute’s catchall phrase. We remand to the Court of Appeals so that Court may decide whether defendants’ conduct falls within the limiting construction of MCL 168.932(a) offered here and, if so, resolve defendants’ remaining constitutional arguments.

Two justices dissented in part, believing the statute could not properly be construed to be limited in the way favored by the majority. They did not reach the constitutional questions.

Thanks to Eugene Volokh for the pointer.

UPDATE: I had missed Derek’s earlier coverage of this case when travelling.

Share this:

“En Banc Court Hears First Amendment Challenge to Campaign Finance Restriction”

Trane Robinson reviews arguments in the Sixth Circuit’s National Republican Senatorial Committee v. FEC case, about limits on political party expenditures coordinated with particular candidates.  It’s an issue that’s been in the deregulatory community’s sights for a while now, and an important case that will once again likely test the staying power of precedent in the federal judiciary.

Share this:

It’s SCOTUS decision season

We’re waiting for several big SCOTUS cases with a tie to this blog’s content.  One of the perhaps-less-watched (?) was released this morning: Vidal v. Elster, about an attempt to trademark “Trump too small” to use on campaign gear, after a 2016 primary tiff between Donald Trump and Marco Rubio.  The Lanham Act – the federal trademark statute – prohibits registering a trademark using a living person’s name without their consent, and the Supreme Court this morning upheld the constitutionality of that limitation.

A unanimous result with a curious lineup :

THOMAS, J., announced the judgment of the Court and delivered the opinion of the Court, except as to Part III. ALITO and GORSUCH, JJ., joined that opinion in full; ROBERTS, C. J., and KAVANAUGH, J., joined all but Part III; and BARRETT, J., joined Parts I, II–A, and II–B. KAVANAUGH, J., filed an opinion concurring in part, in which ROBERTS, C. J., joined. BARRETT, J., filed an opinion concurring in part, in which KAGAN, J., joined, in which SOTOMAYOR, J., joined as to Parts I, II, and III–B, and in which JACKSON, J., joined as to Parts I and II. SOTOMAYOR, J., filed an opinion concurring in the judgment, in which KAGAN and JACKSON, JJ., joined.

Share this:

The Law of Assembly on Campus

Democratic politics involves far more than voting in elections. Yet, while we spend endless hours preoccupied with largely fabricated problems with elections, few pay any attention to the law of protest and assembly or its inadequacies. When we do, the question is essentially, “when would it be legal to disband the inconvenience and disruption that is protest?” This past week, I had the pleasure of engaging in an informal discussion with John Inazu (Wash U.), Ashutosh Bhagwat (UC Davis) and Tim Zick (William and Mary) about the legal and constitutional dimensions of recent campus protests and the problem with this narrow conception of the question. Beyond those issues that John identifies in his linked blog, our conversation discussed the problems with policing protests and the role of universities and colleges in our democracy.

Share this:

May 3 Conference: “The Future of Press Freedom: Democracy, Law, and the News in Changing Times”

I’m looking forward to attending and speaking at this Knight First Amendment Institute conference on Friday (live and online).

I’ll be presenting my paper, From Bloggers in Pajamas to The Gateway Pundit: How Government Entities Do and Should Identify Professional Journalists for Access and Protection.

One of the faux journalists that I write about from The Gateway Pundit, is featured in this new article from Sam Levine at The Guardian, Workers at far-right site Gateway Pundit feared credibility issues, filing shows.

Share this:

“Assembly as Political Practice”

Columbia’s actions this past week, especially its decision to invite the NYPD onto campus, have prompted me to post a new chapter, “Assembly as Political Practice,” forthcoming in the Oxford Handbook of Peaceful Assembly (Tabatha Abu El-Haj, Michael Hamilton, Thomas Probert & Sharath Srinivasan, eds.). Recent events highlight the interrelationship between protest politics and electoral politics, the rise of a new McCarthyism focused on educational institutions, its power, but also the pervasive devaluing of it as a form of politics. Most disheartening to me personally is the widespread perceived reasonableness of Columbia’s actions including among First Amendment scholars. It stems, in my view, from a misconception of assembly as a lesser form of speech and an inclination to over estimate the risks of disorder.

“[A]ssemblies come in a range of . . . forms, including annual parades, smaller political protests, and weekly gatherings of social groups. All these forms of assembly sustain and reinforce the capacity for democratic politics, and their value does not turn on their expressive ends alone. Both the possibility of effective democratic politics, and a proper construction of the right of peaceful assembly, demand that we recognize the value of assembly, as assembly, and its latent and constitutive political functions.”

Share this:

“Back into the FIRE: Hasen’s response to FIRE and Rohde: Don’t read the press clause out of the Constitution — First Amendment News 420”

I have written this reply, as Ron Collins explains:

It all started when I noticed an SSRN post of a forthcoming essay by Richard Hasen. In it, the UCLA School of Law professor took exception to some of what was offered up by FIRE in an amicus brief filed in the Ninth Circuit in TGP Communications v. Sellers. FIRE and Stephen Rohde thereafter weighed in with their responses to Hasen. 

Now, professor Hasen returns to the analytical scene with his rejoinder, which is set out below. 

A few snippets:

Neither FIRE nor Rohde address the problem, “How do you identify journalists when there is finite space or some other scarcity and decide whether to give special treatment like a media shield?” or most of my proposed solutions — such as limiting press protections to professional journalists rather than dabblers, and making the definition of “press” turn on the regularity of engaging in journalistic activities rather than on the type of technology (like a political blog) through which reporting is conveyed.

It may be that FIRE and Rohde believe all the rules that identify professional journalists, including the rules for United States Supreme Court press access that I detail in my chapter, violate the First Amendment. If so, such a ruling would not only eviscerate protection for the press contained in the First Amendment. It would also create Bedlam. Are we going to kick out reporters from The New York Times and Fox News from the White House briefing room and replace them with non-professionals who just have a personal interest in being there? Will this be done by lottery? This system would do a great disservice to the nation and to the ability of the press to serve its educational function — and to serve as a meaningful check on the government.

Are we to give everyone a press shield, essentially ending the pursuit of truth in courts? Or are we to eliminate press protections for professional journalists? Neither FIRE nor Rohde say.

Instead, they focus on only one aspect of my proposal — something which has historically not been a problem, but in the cheap speech era is increasingly becoming one: how to handle people who are professionals in the sense that they write content for websites, but they do not follow journalistic norms. Instead, they are vectors for spreading disinformation, including disinformation about elections being stolen that undermines voter confidence in the democratic process….

Share this:

“Fueling the FIRE: Responses to Richard Hasen on how the government should identify professional journalists for access and protection”

Ron Collins for First Amendment News:

Last week, I posted excerpts from Professor Richard Hasen’s essay on how the government might best identify professional journalists for access to government events, as well as the related protections afforded to journalists. In Part IV of that essay, as I highlighted in those excerpts, Hasen took issue with certain arguments tendered by FIRE in its amicus brief, which was filed in the Ninth Circuit in TGP Communications v. Jack Sellers (FIRE’s Ronnie London, counsel of record).

In the spirit of fairness and the free exchange of ideas, I invited the FIRE folks to reply, which they accepted. And to add a bit more conceptual fuel to the “FIRE,” Stephen Rohde also entered the fray with his own reply to Hasen.

Both are featured below.

The “fiery” exchange will continue next week, when professor Hasen will return with a rejoinder to his critics.

Meanwhile, let the word go out: We’re on fire here at FIRE! And expect more heat (and light too) in the days and months to come.

Share this:

“Contra FIRE: Hasen on how the government should identify professional journalists for access and protection – First Amendment News 418”

Ron Collins for First Amendment News on my new draft paper, From Bloggers in Pajamas to The Gateway Pundit: How Government Entities Do and Should Identify Professional Journalists for Access and Protection. FIRE attorneys are going to respond in the next issue, and I’m looking forward to that!

Share this:

My New One at Slate: “2016 Election Fraudster ‘Ricky Vaughn’ Might Finally Be About to Face the Music”

I have written this piece for Slate. it begins:

On Friday, a federal appeals court in New York will consider a case with key implications for the 2024 election. At issue is whether it violates federal law to trick people on social media and elsewhere about when, where, or how to vote, and whether such a law is consistent with the First Amendment. A ruling favoring the government would go a long way toward protecting voters.

Back in 2016, a man named Douglass Mackey, tweeting under the name “Ricky Vaughn,” repeatedly directed messages to Black voters encouraging them to vote by text for Hillary Clinton. The intent was to trick these voters out of their franchise; of course, votes sent by text don’t count. Thousands sent texts to vote. We don’t know how many of them later did not attempt to vote in a permissible way.

Mackey was convicted by a jury of violating a Reconstruction-era law, 18 U.S.C. § 241, that made it a crime for “two or more persons [to] conspire to injure, oppress, threaten, or intimidate any person … in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States.” The federal government’s theory was that Mackey conspired with others to deprive voters of their right to vote.

On expedited appeal before the U.S. Court of Appeals for the 2nd Circuit, Mackey concedes that, “at worst,” his tweets containing false information about how to vote “were calculated to cause voters to send futile text messages and then stay home on election day.” But, he argues, Section 241 does not apply to conduct such as his, he was not on fair notice that Section 241 applied to conduct like his, and even if it covered this conduct, Section 241 would apply to so much protected speech that it would violate the First Amendment’s protection for freedom of speech.

In an amicus brief supporting the federal government, Protect Democracy, the Yale Media Freedom and Information Access Clinic, and I take issue with Mackey’s first and third arguments….

Share this:

“It Depends Who’s Doing the Jawboning”

I’ve got a new post up at Lawfare about a crucial piece missing from the discussion around Murthy v. Missouri, the SCOTUS case about jawboning the social media platforms. Plenty of the Justices had welcome real-world executive experience that came through in last Monday’s argument — but they didn’t recognize that their experiences were also different in ways that should matter. The governing philosophy and structure of different Administrations are distinct, and that context is really important in assessing the potential for coercion.

Or, if you prefer:

Happy Administrations are all alike; unhappy Administrations are each unhappy with social media platforms in their own way.

Share this: