Category Archives: First Amendment theory

Preliminary Injunction Against Maine Foreign Influence Initiative Upheld By First Circuit

campaign finance, court decisions, First Amendment theory, political equality, referendum

A panel of the Court of Appeals for the First Circuit affirmed a district court’s preliminary injunction against a Maine ballot initiative that prohibited “foreign governments and ‘foreign government-influenced entit[ies] from contributing or otherwise influencing candidate elections and ballot initiatives.” The district court granted the plaintiffs’ preliminary injunction motion on the ground that a substantial application of the statute was unconstitutional and that plaintiffs were likely to succeed on the merits. In a 47-page opinion, Judge Lara Montecalvo upheld the lower court’s decision.

According to the Court:

The Act states that “[a] foreign government-influenced entity may not make, directly or indirectly, a contribution, expenditure, independent expenditure, electioneering communication or any other donation or disbursement of funds to influence the nomination or election of a candidate or the initiation or approval of a referendum.” Tit. 21-A, § 1064(2).

The district court upheld the Act’s ban on political spending by foreign corporations. But the court concluded that a substantial number of the Act’s application was likely unconstitutional. From the opinion:

In the end, because the district court determined that a substantial number of the Act’s applications likely violated the First Amendment, and the remaining factors favored a preliminary injunction, it enjoined the Act in its entirety. Id. at 55-56. In doing so, the district court expressly noted Maine severability law but declined to sever given the expedited and preliminary nature of the proceeding; instead, the court reserved the issue for later consideration. Id. at 55.

Maine timely appealed, arguing that the district court abused its discretion as to its holdings regarding preemption, the applicable level of scrutiny, the state’s compelling interest, and whether the Act was narrowly tailored. Maine also argued that the Act was not facially invalid, the injunction was overly broad, and the district court abused its discretion in reserving its decision on severability. Since March 21, 2024, the proceedings have been stayed pending appeal.

This case raises a number of interesting issues including the level of scrutiny applicable to political spending by foreign citizens and whether one can distinguish the speech of a domestic subsidiary from the speech of its foreign parent company.

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FTC ad placement consent decree with a … very unusual provision

campaigns, cheap speech, First Amendment theory,

The FTC announced its approval today of a consent agreement governing the acquisition by Omnicrom of The Interpublic Group – both offer (inter alia) media buying services.  The agreement allows the purchase but prohibits Omnicrom from directing ad spending to or away from any publisher based on the “political or ideological viewpoints” of the publisher or of nearby content on the publisher’s platform unless it’s pursuant to the terms of a specific agreement between Omnicrom and the company doing the advertising and purchasing Omnicrom’s services.  And even if one company has an explicit banned- or preferred-publisher list (or asks Omnicrom to come up with one), the agreement stops Omnicrom from sharing that list with any other client.

The agreement sure seems like it’s going to make it significantly harder for Omnicrom to effectuate a client’s “Please don’t show my ad next to Nazi propaganda” wish.  But also, on its face, it also seems like it’s going to make it significantly harder for Omnicrom to create a business model favoring certain kinds of “political or ideological” advertising, or placing ads targeting Republicans or Democrats? 

Unless Omnicrom is effectively a common carrier – and I’ll confess I don’t know the shape of the industry enough to know – it’s hard to see how this squares with the company’s First Amendment rights…

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“Trump Can Restrict A.P. Journalists’ Access, Appeals Court Rules”

First Amendment theory

NYT on what is perhaps the worst ruling on freedom of the press that I’ve ever read:

A federal appeals court on Friday paused a lower court’s ruling that had required the White House to allow journalists from The Associated Press to participate in covering President Trump’s daily events and travel alongside their peers from other major news outlets.

By a 2-to-1 vote, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit found that many of the spaces in the White House complex or on Air Force One where members of the press have followed the president for decades are essentially invite-only, and not covered by First Amendment protections.

“The White House therefore retains discretion to determine, including on the basis of viewpoint, which journalists will be admitted,” wrote Judge Neomi Rao, a Trump appointee. She was joined by Judge Gregory G. Katsas, who was also appointed by Mr. Trump.

The ruling temporarily lifted the requirement that the White House give A.P. journalists the same access as other news media professionals while the appeal continues. But it was clouded by the fact that the situation facing The Associated Press has shifted considerably since the legal standoff began in February.

Heidi Kitrosser writes a bit about what’s terribly wrong about the ruling.

See also my earlier piece, From Bloggers in Pajamas to The Gateway Pundit: How Government Entities Do and Should Identify Professional Journalists for Access and Protection, forthcoming in THE FUTURE OF PRESS FREEDOM: DEMOCRACY, LAW & THE NEWS IN CHANGING TIMES (Cambridge U. Press, RonNell Andersen Jones and Sonja R. West eds. forthcoming 2025)

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Social media and democracy

First Amendment theory

Some reflections from Senator Todd Young over at Politico:

As I talk about this topic with regular citizens — that is, those who don’t own major social media companies or work at Washington, D.C., think tanks — there is an appetite for certain smart regulatory approaches. However, in the last few years I think there’s been a heightened awareness of the potential when you regulate to constrain speech, and a general skepticism of regulators’ intentions and ideologies and good faith in trying to intermediate conversations.

When I entered the public fray, I think there was an appetite — or maybe a missed window of opportunity — to come up with a better model through law. It’s really challenging right now, because we’ve become, in many ways, a nation of distinct tribes not just in terms of our political identification but our belief system. There’s a distrust of efforts to sort out fact from fiction and to referee the public square, and private actors have seized control of the public square through these social media outlets. We haven’t figured out how to address that in a pluralistic, highly populous and dynamic democracy, and we’re going to have to come up with answers at some point.

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New Article on Democracy and Political Assembly

academic freedom, First Amendment theory, , , , , ,

At this time, when so many democratic norms and institutions of government and civil society are being challenged, I hope readers of this blog will be interested in my new article, A Right of Peaceable Assembly, forthcoming in the Columbia Law Review.

The development of an independent Assembly Clause doctrine is essential. It may once have been possible to dismiss the consequences of ignoring the textual right of assembly. This is no longer true. Our neglect of the right has significant contemporary consequences for political protests, as the campus protests since October 7, 2023, have demonstrated.

The functional absence of the Assembly Clause in First Amendment law and constitutional discourse fundamentally distorts our analysis of the proper scope of constitutional protection for political assemblies. This Symposium Piece develops a much-needed independent Assembly Clause doctrine. An independent Assembly Clause doctrine would not just be consistent with the text and original understanding of the Founders but also allow for a jurisprudence capable of distinguishing between protected and unprotected assemblies in relation to assembly’s distinct contribution to self-governance. The Piece recognizes that legal recognition of assembly as a textual right troubles the speech-conduct distinction that lies at the heart of contemporary First Amendment jurisprudence and upends existing determinations about the proper scope of constitutional protection for those who gather in public for political ends. The fact, however, is that the First Amendment explicitly protects a certain form of conduct (peaceable assembly), and it does so for good reasons (assemblies further liberal democracy in both instrumental and non-instrumental ways). This Piece, therefore, lays out a roadmap for an independent Assembly Clause doctrine capable of providing more appropriate constitutional protection, accounting for both assembly’s value and its social costs.

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“Jury finds NY Times not liable in Sarah Palin defamation case”

First Amendment theory

Reuters:

A federal jury in Manhattan on Tuesday found the New York Times not liable for allegedly defaming Sarah Palin in a 2017 editorial about gun control, dealing the former Republican U.S. vice presidential candidate a second loss at trial.

The verdict came in a retrial of Palin’s case, after a federal appeals court threw out a 2022 verdict in the Times’ favor.

Palin, 61, who also served as Alaska’s governor, sued the newspaper and former editorial page editor James Bennet over a June 14, 2017, article that wrongly suggested she may have incited a January 2011 mass shooting in an Arizona parking lot.

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DC Circuit Rejects First Amendment Challenge to White House Press Pass Credentialing Policy in Opinion That Requires Policy to Be Applied in Viewpoint Neutral Way (a Holding that Could Help AP)

First Amendment theory

I have been following the Ateba case closely, writing about it in From Bloggers in Pajamas to The Gateway Pundit: How Government Entities Do and Should Identify Professional Journalists for Access and Protection, forthcoming in THE FUTURE OF PRESS FREEDOM: DEMOCRACY, LAW & THE NEWS IN CHANGING TIMES (Cambridge U. Press, RonNell Andersen Jones and Sonja R. West eds. forthcoming 2025). I am particularly interested in application of journalist standards of bona fide repute in the field to deal with the question of faux journalists.

Today’s opinion rejects a journalist’s challenge to these rules under the First Amendment, in an opinion that strikes me as quite sound. But perhaps the most important part of the opinion has to do with the D.C. Circuit’s description of the White House press room as a nonpublic forum that still cannot engage in viewpoint discrimination, a point that is relevant to the AP’s current fight over access with the Trump White House. Here’s the relevant part:

As a nonpublic forum, access to the White House Press Area “can be restricted as long as the restrictions are” viewpoint neutral and reasonable. Cornelius, 473 U.S. at 800. The purpose of the forum is central to this analysis, because the government may “reserve the [nonpublic] forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view.” Perry, 460 U.S. at 46. “Control over access to a nonpublic forum can be based” even “on subject matter and speaker identity so long as” it meets the requirements of reasonableness and viewpoint neutrality. Cornelius, 473 U.S. at 806….

Second, the Hard Pass Policy is viewpoint neutral. Viewpoint discrimination is an “egregious form of content discrimination,” which occurs when a government regulation “targets not subject matter, but particular views taken by speakers on a subject.” Rosenberger, 515 U.S. at 829. The Hard Pass Policy does not reference viewpoints in any way, and Ateba does not allege that either the White House or the Senate Daily Press Gallery denies press credentials based on
the content of a correspondent’s reporting….

In sum, we conclude that the White House Hard Pass Policy does not violate the First Amendment. Assuming that Ateba’s loss of preferential access to the Press Area implicates
the First Amendment at all, his rights have not been impermissibly burdened because the White House’s reliance on an outside credentialing body is both reasonable and viewpoint neutral. Moreover, the role played by the Senate Daily Press Gallery in the credentialing process does not inject “unbridled discretion” into the process because its membership decisions are guided by the concrete standards enumerated in its Standing Committee Governing Rules; and the First Amendment does not require the gallery to set a deadline for the adjudication of membership applications. We therefore affirm the judgment of the district court.

Update: Coincidentally, the AP won a preliminary injunction in the district court today on White House Access, based upon the viewpoint discrimination argument.

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“US Supreme Court turns away casino mogul Wynn’s bid to challenge NY Times v. Sullivan defamation rule”

First Amendment theory, Supreme Court

John Kruzel for Reuters:

The U.S. Supreme Court turned away on Monday a bid by casino mogul Steve Wynn to roll back defamation protections established in its landmark 1964 ruling in the case New York Times v. Sullivan – a standard that has been questioned by President Donald Trump and two of its own conservative justices.

The justices declined to hear an appeal by Wynn, former CEO of Wynn Resorts (WYNN.O), opens new tab, of a decision by Nevada’s top court to dismiss his defamation suit against the Associated Press and one of its journalists under a state law meant to safeguard the U.S. Constitution’s First Amendment protections for freedom of speech.

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March 28-29 Yale Conference: “Free Speech in Crisis and the Limits of the First Amendment”

campaign finance, cheap speech, First Amendment theory

Looking forward to speaking at this event (in person only):

Recently, the law of free speech has been marked by two seemingly inconsistent phenomena. On the one hand, the Roberts Court has been both praised and decried for its highly speech-protective view of the First Amendment. The First Amendment, we are told, has been weaponized; it is “imperial”; it is stronger than it has ever been. On the other hand, the First Amendment has been ineffective in combating the recent explosion of speech-restricting laws and government actions. Similarly, there has been pronounced private mobilization to suppress speech, ranging from doxing trucks that have plagued many campuses to powerful donor threats that have prompted universities to crack down on student speech. Here too, the imperial First Amendment has been largely unavailable as a safeguard of private speech.

This conference will explore these twinned phenomena from both normative and pragmatic perspectives. Is the fact that so much speech regulation lies beyond the scope of the First Amendment a problem for the doctrine? Or is it, conversely, a virtue? How can free speech values be protected and strengthened at a moment of political polarization and intensifying repression at all levels of government?

Agenda

Friday, March 28

8:30 a.m. | Breakfast & Registration | SLB 122 & Dining Hall

9:15 a.m. | Welcome/Opening Remarks | SLB 129

  • Organizers: Jack Balkin, Genevieve Lakier, Mikey McGovern

9:30 a.m. | Panel 1: Media Environment | SLB 129

  • Chair: Paul Starr, Princeton University
  • Yochai Benkler, Harvard Law School
  • Mary Anne Franks, George Washington University School of Law
  • Eugene Volokh, Hoover Institution

11:00 a.m. | Coffee Break | SLB 122

11:15 a.m. | Panel 2: Polarization | SLB 129

  • Chair: Robert Post, Yale Law School
  • Nicole Hemmer, Vanderbilt University
  • Liliana Mason, SNF Agora Institute, Johns Hopkins University 
  • Ganesh Sitaraman, Vanderbilt Law School

12:45 p.m. | Lunch | Dining Hall

2:15 p.m. | Panel 3: Political Marketplace | SLB 129

  • Chair: Rick Hasen, University of California, Los Angeles School of Law
  • Rick Pildes, NYU Law (subbing in for Pam Karlan, who was listed here earlier)
  • Bradley A. Smith, Capital University Law School
  • Ann Southworth, University of California, Irvine School of Law

3:45 p.m. | Coffee Break | SLB 122

4:00 p.m. | Panel 4: Workplace | SLB 129

  • Chair: Amanda Shanor, University of Pennsylvania
  • Helen Norton, University of Colorado School of Law
  • Benjamin Sachs, Harvard Law School
  • Liz Sepper, University of Texas Law School

Saturday, March 29

9:00 a.m. | Breakfast | Dining Hall

9:30 a.m. | Panel 5: Knowledge Production | SLB 129

  • Chair: Amy Kapczynski, Yale Law School
  • E.J. Fagan, University of Illinois Chicago 
  • Vicki Jackson, Harvard Law School
  • Naomi Oreskes, Harvard University

11:00 a.m. | Coffee Break | SLB 122

11:15 a.m. | Panel 6: Campus Politics | SLB 129

  • Chair: Genevieve Lakier, University of Chicago Law School
  • Judith Butler, University of California, Berkeley 
  • Athena Mutua, University at Buffalo School of Law
  • Keith Whittington, Yale Law School

12:45 p.m. | Grab boxed lunch | Dining Hall

1:00 p.m. | Wrap-Up Conversation | SLB 129

  • Organizers: Jack Balkin, Genevieve Lakier, Mikey McGovern
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“Supreme Court Signals That Landmark Libel Ruling Is Secure”

First Amendment theory, Supreme Court

Adam Liptak for the NYT:

Starting in 2019, Justice Clarence Thomas has repeatedly called for the Supreme Court to reconsider New York Times v. Sullivan, the landmark First Amendment decision that made it hard for public officials to prevail in libel suits.

That project gained momentum in 2021, when Justice Neil M. Gorsuch said the decision “has evolved into an ironclad subsidy for the publication of falsehoods by means and on a scale previously unimaginable.”

So it was notable that just five days before President Trump took office last month, the Supreme Court seemed to go out of its way to signal that it is not ready to embrace one of his most dearly held goals: to “open up our libel laws” and overrule the Sullivan decision.

The signal, faint but unmistakable, came in a routine case on whether sales representatives were entitled to overtime. Justice Brett M. Kavanaugh cited the Sullivan decision with seeming approval, noting that it had held that the Constitution insists that public officials suing for libel must prove their cases with clear and convincing evidence….

The positive reference to the Sullivan decision last month was not a fluke. In 2023, Justice Elena Kagan, writing for five justices in a 7-to-2 decision, relied on Sullivan to rule that the First Amendment imposes limits on laws that make it a crime to issue threats on the internet….

All of this suggests that there remain only two votes to overturn the Sullivan decision, well short of the four it takes to add a case to the court’s docket, much less the five required to prevail on the merits.

Still, the attacks from Justices Thomas and Gorsuch have not gone unnoticed. Their dissents have been cited in 25 court decisions, according to a database search….

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“TikTok Case Before Supreme Court Pits National Security Against Free Speech”

cheap speech, First Amendment theory, Supreme Court

NYT:

When the Supreme Court hears arguments on Friday over whether protecting national security requires TikTok to be sold or closed, the justices will be working in the shadow of three First Amendment precedents, all influenced by the climate of their times and by how much the justices trusted the government.

During the Cold War and in the Vietnam era, the court refused to credit the government’s assertions that national security required limiting what newspapers could publish and what Americans could read. More recently, though, the court deferred to Congress’s judgment that combating terrorism justified making some kinds of speech a crime.

The court will most likely act quickly, as TikTok faces a Jan. 19 deadline under a law enacted in April by bipartisan majorities. The law’s sponsors said the app’s parent company, ByteDance, is controlled by China and could use it to harvest Americans’ private data and to spread covert disinformation.

The court’s decision will determine the fate of a powerful and pervasive cultural phenomenon that uses a sophisticated algorithm to feed a personalized array of short videos to its 170 million users in the United States. For many of them, and particularly younger ones, TikTok has become a leading source of information and entertainment….

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“Experts: Trump’s use of consumer fraud law to sue Des Moines Register unlikely to succeed”

authoritarian threats in US, First Amendment theory

Des Moines Register:

Legal experts representing different ends of the political spectrum say the recent lawsuit by President-elect Donald Trump against the Des Moines Register is based on a strained interpretation of Iowa law and is unlikely to find success in court.

Trump filed suit Dec. 16 against the Register, its parent company Gannett and longtime Iowa pollster Ann Selzer, alleging violations of the Iowa Consumer Fraud Act. The complaint centers on a poll published by the Register in early November that understated Trump’s support, showing Vice President Kamala Harris with a 3-point lead over Trump in Iowa just days before Trump went on to win the state by 13 points.

Trump’s suit alleges the poll was fraudulent and an attempt at election interference. The Register has said it stands by its work.

Several experts who have reviewed Trump’s petition say his legal theory is a stretch. Samantha Barbas, a professor and First Amendment expert with the University of Iowa College of Law, said Iowa’s consumer fraud law is a poor fit for Trump’s complaint.

The Iowa Consumer Fraud Act “is meant to protect people who buy goods or services, not people who consume news and other sorts of information,” Barbas said. “So this is completely far-fetched, in my opinion, and other than Trump’s lawsuit here, and he has a similar case going on in Texas, I’m not aware of parties that have used a consumer fraud statute to punish or sue newspapers for information they don’t like.”…

Eugene Volokh, a UCLA professor and fellow with the free market-oriented Hoover Institution, wrote Dec. 18 for the libertarian-leaning publication Reason that “the First Amendment generally bars states from imposing liability for misleading or even outright false political speech, including in commercially distributed newspapers — and especially for predictive and evaluative judgments of the sort inherent in estimating public sentiment about a candidate.”
Volokh cited a 2020 case from Washington state courts, where a group sued Fox News alleging that its statements by its show hosts, including Sean Hannity, dismissing or minimizing the COVID-19 pandemic violated that state’s consumer protection laws. Both the district judge and appellate courts in Washington rejected that claim, finding that statements of opinion on a topic of public concern are core First Amendment-protected speech.

“There are some historically recognized exceptions to First Amendment protection for knowing falsehoods, such as for defamation, fraud, and perjury. But those are deliberately exceptions,” Volokh wrote. “Defamation is limited to knowing (or sometimes negligent) falsehoods that damage a particular person’s reputation. Fraud is limited to statements that themselves request money or other tangibly valuable items. Perjury is limited to lies under oath in governmental proceedings. There is no general government power to punish political falsehoods outside these narrow exceptions.”…

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