NEWSFLASH! 10/28-11/12

Our heads are still spinning (in a good way!) from our annual Symposium last weekend! Our many wonderful speakers examined the role of the First Amendment in creating an informed society. We sincerely appreciate their insight!

Now, for some First Amendment headlines:

The Supreme Court has agreed to hear a case determining the constitutionality of a 1986 federal law that allows the prosecution of any person who encourages an undocumented person to “come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law.” The respondent in the case, Evelyn Sineneng-Smith, who owned an immigration consulting firm, was found guilty of violating the statute when she encouraged many of her Filipino clients to remain in the United States as they sought permanent residency status. On appealing her conviction, the Ninth Circuit Court of Appeals found the law to be in violation of the First Amendment and thus unconstitutional as her conversations with clients were simply the “constitutionally protected conversations and advice that happen daily.” The Trump administration has appealed the Ninth Circuit decision and will likely argue to the Supreme Court that the First Amendment does not protect speech integral to criminal conduct.

New York Representative Alexandria Ocasio-Cortez has apologized for blocking a critic from her Twitter feed. The apology comes on the heels of a lawsuit filed by the blocked user arguing that Representative Ocasio-Cortez’s blocking was a violation of the First Amendment. This is area of First Amendment law that continues to develop. The Second Circuit Court of Appeals ruled last summer that since President Trump “uses Twitter to conduct government business, he cannot exclude some Americans from reading his posts — and engaging in conversations in the replies to them — because he does not like their views….”

A federal district court in Georgia recently had an interesting opportunity to consider the no-compelled speech doctrine of the First Amendment which “sets out the principle that the government cannot force an individual or group to support certain expression.” In the case considered, a Georgia sheriff placed several signs stating “No trick-or-treat at this address!!” in the yards of registered sex offenders who subsequently brought suit. The sheriff responded that the signs were a form of government speech and thus were immune from First Amendment scrutiny. The district court agreed in part but noted that while the signs were “indeed, government speech,…the Supreme Court has never said that government speech cannot also be, or can’t become, compelled speech.” In other words, since the sheriff was essentially forcing the sex offenders to acquiesce with the language of the sign without a meaningful opportunity to counter it, the speech was wrongfully compelled.

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