Category Archives: First Amendment theory

“Wisconsin Judge Dismisses Felony Charge in ‘Ballot Selfie’ Case”


A Wisconsin judge on Monday dismissed a felony charge against a school board candidate who had posted a photograph on Facebook of a ballot with his name filled in.

In his ruling, the judge, Paul V. Malloy of Ozaukee County, threw out the count of voter fraud against the man, Paul H. Buzzell, 52, a former school board member in Mequon, a suburb of Milwaukee, who was voted back onto the board during an election in April, online court records show.

Judge Malloy ruled on a motion to dismiss by Mr. Buzzell’s lawyers, who argued that the state law prohibiting so-called ballot selfies was overly broad and violated the constitutional guarantee of free expression.

“What is at stake is branding a politician a felon for declaring to the world that the politician displayed” a marked ballot “showing a vote for himself in an election,” the motion said. Mr. Burrell would have faced a maximum possible sentence of three and a half years in prison and a $10,000 fine had he been convicted. He would also have been barred from running for elected office.

The case reflects the debate among states over selfies of ballots and of people showing how they vote. Some legislators have argued that public displays of marked ballots can be used to influence voters in an election or to promote vote buying. Others, including the American Civil Liberties Union, say such laws banning voting selfies on social media restrict free spee….

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ELB Podcast 5:3: The Trump Prosecutions, the First Amendment, and Election Interference (Genevieve Lakier and Eugene Volokh)

New ELB Podcast:

Do gag orders against presidential candidate Donald Trump in his civil or criminal trials violate the First Amendment?

What should we make of Trump’s claims that his actions to overturn the results of the 2020 elections are protected free speech?

How should we assess the dangers of government “jawboning” of social media platforms to remove objectionable conduct?

On Season 5, Episode 3 of the ELB Podcast, we delve into these issues with First Amendment experts Genevieve Lakier and Eugene Volokh.

You can subscribe on SoundcloudApple Podcasts, and Spotify.

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How Big a Risk is Government “Jawboning” Where Government Pressures Media or Platforms to Include, Remove, or Demote Content?

The Knight First Amendment institute has a first-rate set of papers on this topic that just posted. And it couldn’t be more timely with Friday’s quick cert. grant in the Murthy v. Missouri case.

I was struck in my conversation for SDP last week with Genevieve Lakier and Eugene Volokh about jawboning that this is a cross-partisan issue: just as the right is worried about pressure from the Biden administration, shouldn’t the left be worried about pressure from a future Trump or Trump-like administration?

This case should produce some interesting briefs and perhaps interesting constellations of Justices.

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“Supreme Court turns away coal baron’s defamation claim against news companies”

NBC News:

The Supreme Court on Tuesday declined to consider overturning a landmark case that gives protections to news organizations facing defamation claims by rejecting an appeal brought by West Virginia coal baron Don Blankenship.

Blankenship, also an erstwhile Republican Senate candidate, sued various news organizations for referring to him as a convicted felon when in fact he was convicted of a misdemeanor in relation to a mining disaster in 2010 that killed 29 miners.

He claimed that his loss in the 2018 Republican Senate primary in West Virginia was attributable to the erroneous comments repeated in the media, which he suggested were deliberate.

Among the defendants is MSNBC, a division of NBCUniversal, which also owns NBC News. CNN, Fox News and the Washington Post are among other news organizations that were sued.

Blankenship asked the court to overturn the 1964 Supreme Court defamation ruling in New York Times v. Sullivan, which concluded that there must be evidence of “actual malice” for a public figure to pursue a defamation claim.

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“Trump trials: What counts as protected free speech?”

Christian Science Monitor:

“There’s nothing more protected under the First Amendment than political speech,” Mr. Lauro said.

Many legal analysts are skeptical this approach will work in a courtroom. There is no First Amendment right to engage in a conspiracy to break the law, they point out, and Mr. Trump has been charged with urging others to take illegal actions.

Nor is “political” speech actually uniquely protected under the law, they say.

But some experts add that there are fuzzy lines in First Amendment jurisprudence. It is an area of law that is not as settled as one might think, given the Constitution’s age.

Judges in Trump cases may also be reluctant to slap pretrial speech restrictions on a former president and current political candidate who is adamant about First Amendment rights, even if he makes inflammatory comments about his legal situations.

“The basic point is that there are areas of uncertainty,” says Frederick Schauer, a professor and First Amendment scholar at the University of Virginia School of Law. “Raising a First Amendment defense might, depending on the facts, not be completely frivolous.”…

Urging in the abstract that people ought to rob banks to bring capitalism to its knees would be protected under the First Amendment, says Professor Schauer. Urging particular people in a nonpublic manner to rob a bank and give the speaker some of the money would not.

“So a lot may depend on the fuzzy line between protected advocacy of illegal activity and unprotected criminal conspiracy,” says Professor Schauer.

Some experts say Mr. Trump’s lawyers’ description of his activities as “political” speech may be more of a rhetorical flourish than legally meaningful.

Political speech is often presented as axiomatic of the type of speech that the First Amendment is designed to protect, says Gregory Magarian, a constitutional law professor at Washington University School of Law in St. Louis. That does not make it a special category, he says. Speech is speech.

The loser of an election is allowed to say they really won, even if everyone around them is saying otherwise. 

“But if the loser is the president and he is using the power of the office to overturn an adverse election result, that’s way off in its own ZIP code in terms of protecting political dissent,” says Professor Magarian.

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“Biden administration tells US Supreme Court to review social media laws”


President Joe Biden’s administration urged the U.S. Supreme Court to take up a dispute over Republican-backed laws in Texas and Florida that would undercut efforts by social media companies to curb content deemed objectionable on their platforms.

The states call the actions impermissible censorship.

The justices are considering taking up two cases involving challenges to the state laws brought by technology industry groups including NetChoice, whose members include Meta Platforms Inc (META.O) Alphabet Inc (GOOGL.O), and X, formerly known as Twitter….

Invited to weigh in on the dispute, the Justice Department on Monday said the cases merit review because the laws burden the platforms’ rights under the U.S. Constitution’s First Amendment, which protects freedom of speech.

“When a social-media platform selects, edits, and arranges third-party speech for presentation to the public, it engages in activity protected by the First Amendment,” the Justice Department said in a written brief.

You can find the SG’s brief here. The SG frames 4 questions presented, and urges the Justices to hear only questions 1 and 2 but NOT 3 and 4:

These cases concern laws enacted by Florida and Texas to regulate major social media platforms like Facebook, YouTube, and X (formerly known as Twitter).
The two laws differ in some respects, but both restrict platforms’ ability to engage in content moderation by removing, editing, or arranging user-generated content; require platforms to provide individualized explanations for certain forms of content moderation; and require general disclosures about platforms’ content-moderation practices. The questions presented are:

  1. Whether the laws’ content-moderation restrictions comply with the First Amendment.
  2. Whether the laws’ individualized-explanation requirements comply with the First Amendment.
  3. Whether the laws’ general-disclosure provisions comply with the First Amendment.
  4. Whether the laws violate the First Amendment because they were motivated by viewpoint discrimination.
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“Trump’s defense team casts Jan. 6 indictment as an attack on free speech”

Washington Times:

University of California, Berkeley law professor John Yoo said free speech isn’t an all-encompassing right and some speech is criminal.

“As a historical matter, this is the most important criminal prosecution that has ever been brought by the federal government,” he said. “It should be correspondingly airtight on the facts and the law, but it is not. It is really stretching the law.”…

Jonathan Turley, who teaches constitutional law at George Washington University, said Mr. Smith “issued the first criminal indictment of alleged disinformation in my view.”

“If you take a red pen to all of the material presumably protected by the First Amendment, you can reduce much of the indictment to haiku,” Mr. Turley tweeted. “I felt that the Mar-a-Lago indictment [over mishandling classified documents] was strong. This is the inverse.”

But Ciara Torres-Spelliscy, professor of law at Stetson University College of Law, said a recent Supreme Court ruling in United States v. Hansen “blows Trump’s First Amendment arguments out of the water.”

The court said in the ruling that “words may be enough” for individuals to face criminal charges for encouraging unlawful acts, and assisting “a wrongdoer with the intent to further an offense’s commission.”

“The First Amendment wasn’t a shield for Mr. Hansen and it won’t be a shield for Mr. Trump either,” Ms. Torres-Spelliscy said in an email to The Washington Times.

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“Federal Judge Limits Biden Officials’ Contacts With Social Media Sites”


A federal judge in Louisiana on Tuesday restricted the Biden administration from communicating with social media platforms about broad swaths of content online, a ruling that could curtail efforts to combat false and misleading narratives about the coronavirus pandemic and other issues.

The order, which could have significant First Amendment implications, is a major development in a fierce legal fight over the boundaries and limits of speech online.

It was a victory for Republicans who have often accused social media sites like Facebook, Twitter and YouTube of disproportionately taking down right-leaning content, sometimes in collaboration with government. Democrats say the platforms have failed to adequately police misinformation and hateful speech, leading to dangerous outcomes, including violence.

In the ruling, Judge Terry A. Doughty of the U.S. District Court for the Western District of Louisiana said that parts of the government, including the Department of Health and Human Services and the Federal Bureau of Investigation, could not talk to social media companies for “the purpose of urging, encouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content containing protected free speech.”…

Some experts in First Amendment law and misinformation criticized the Tuesday ruling.

“It can’t be that the government violates the First Amendment simply by engaging with the platforms about their content-moderation decisions and policies,” said Jameel Jaffer, the executive director of the Knight First Amendment Institute at Columbia University. “If that’s what the court is saying here, it’s a pretty radical proposition that isn’t supported by the case law.”

Mr. Jaffer added that the government has to balance between calling out false speech without stepping into informal coercion that veers toward censorship. “Unfortunately Judge Doughty’s order doesn’t reflect a serious effort to reconcile the competing principles,” he said.

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Disney v. DeSantis

On April 26, Disney sued DeSantis in federal court.  And on May 1, DeSantis (well, the five DeSantis appointees to the new Central Florida Tourism Oversight District) sued Disney in state court.

The federal case is essentially about a state government allegedly interfering with contracts (Disney’s efforts to lock in land use and development rights) in retaliation against  political speech; the state case is essentially about the notion that the contracts were allegedly invalid to begin with.

There are plenty of explainers already out there on some aspects of all this: the King Charles III cameo in the contracts and the rule against perpetuities, the Contracts Clause claim front and center of Disney’s complaint, the fact that the CFTOD board is threatening to raise taxes (on Disney, naturally) to raise the money to carry out the case, on what the heck the CFTOD is in the first place.

For this blog’s purposes, I’m most interested in the First Amendment claims in the federal suit, against both the CFTOD and the legislature.  They allege official state retaliation against protected speech (and that allegation also factors in to the legitimacy of the other federal claims, which largely turn on justification).  DeSantis and his allies in the legislature and on the CFTOD board haven’t been shy about leaving a trail of evidence: Disney recites some in their complaint, including in DeSantis’s own recent book, and it’s hard to believe there’s not much more to be had in discovery (also, it’s hard to believe what’s out there already wouldn’t prove the case).  And it’s that evidence that makes this most curious.

Retaliation cases are a curious thing.  “[A]s a general matter the First Amendment prohibits government officials from subjecting an individual to retaliatory actions” for engaging in protected speech — that’s blackletter law, confirmed again in 2019.  Easy-peasy.  But in this arena, the Court appears profoundly afraid of the big-bad floodgates of litigation, and occasionally gestures toward evidentiary difficulty as a way to walk away from enforcement of the principle in practice.  And so in that very 2019 case, the Court cut most retaliatory arrest cases off at the knees (while leaving a bit of space for egregious cases).  I tend to see Rucho with the same lens, except for the escape valve for egregious cases — ‘cause if ever there was an egregious case in the gerrymandering arena, Rucho was it

The Disney v. DeSantis litigation may never see a trial court opinion on the merits, of course, much less action on appeal.  But I’ll be watching to see whether the extent of the evidence here actually ends up driving the law, rather than the other way around.

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Montana state legislator sues over censure

The lawsuit filed today in state court by Rep. Zephyr – Montana’s first openly transgender lawmaker — and several of her constituents contends that her censure and subsequent barring from Capitol grounds violates the Montana state constitution.

I’m still hoping this isn’t a trend.

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Paul Clement leads cert petition in Mazo v. New Jersey Secretary of State on ballot speech issue

Late last year here at ELB, I highlighted the Third Circuit’s decision in Mazo v. New Jersey Secretary of State. (Disclosure: I filed an amicus brief in that case.) Check out that post for more on the background.

Paul Clement is leading the legal team that has just filed a petition for writ of certiorari to the United States Supreme Court. The docket for the case is here. Here’s how the question presented is framed:

The decision below allows New Jersey to regulate core political speech at the election’s critical moment, and to do so on the basis of content and viewpoint while insulating entrenched political machines from serious primary challenges. New Jersey allows candidates in primary elections to engage in political speech on the ballot via six-word slogans next to their names. New Jersey was not obligated to allow candidates to communicate directly with voters at the very moment they cast their ballots. But having done so for the express purpose of allowing candidates to distinguish themselves from their primary opponents, the state could not dictate content or skew the debate. Undeterred, the state prohibits candidates from referencing the name of any individual anywhere in the world (e.g., “Never Trump” or “Evict Putin From Ukraine”) or any New Jersey corporation (e.g., “Higher Taxes for Merck & JnJ”) absent written consent. Entrenched political machines have long exploited this law by using political associations incorporated in New Jersey to signal which candidates enjoy machine support in the primary. Tellingly, New Jersey drops the consent requirement altogether on the general election ballot. The Third Circuit upheld this glaring free-speech violation only by bypassing traditional First Amendment scrutiny in favor of the amorphous Anderson-Burdick balancing test.

The question presented is:

Whether a state that permits political candidates to engage in core political speech on the ballot may restrict that speech on the basis of content and viewpoint without satisfying strict scrutiny.

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