North Carolina’s First Amendment: Provisional Protections for Liberty in a State Constitution
By Adam Griffin, Staff Member (Vol. 16)
November 22, 2017
North Carolina’s First Amendment
Before the ratification of the Fourteenth Amendment, and before the Supreme Court doctrine of incorporation was created to impose the protections of the First Amendment against the State Governments, most State Constitutions had sister provisions that protected core First Amendment liberties. The existence of these provisions was a principal reason that the Federalist Framers of the Constitution argued against the need for a Federal Bill of Rights. So long as the States recognized these fundamental freedoms in their constitutions, and the people remained conscious of the natural existence of these rights, they would be protected by the structural limits on government and the censorial check on excesses of power imposed by an active, informed, and alert citizenry.
The North Carolina Constitution and Declaration of Rights provided such First Amendment protections for its citizens in separate clauses of its fundamental charter. The freedom of the press, the freedom of assembly and petition, the freedom of conscience, and the free exercise of religion, and prohibition on an establishment of religion were all rights protected in North Carolina’s original 1776 Constitution. Surprisingly to modern eyes, the original North Carolina State Constitution did not include an express provision protecting the freedom of speech.
Prior to the Civil War and implementation of the Supreme Court’s doctrine of incorporation, the First Amendment’s protections were significantly different than modern interpretations of the First Amendment’s provisions. For instance, Sir William Blackstone, an authority on the common law at the founding wrote, “The liberty of the press … consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published.”
When the provisions of the First Amendment were incorporated against the states, North Carolina’s state constitutional protections for such liberties were greatly overshadowed. State Constitutional protections were simply not much utilized after a series of Supreme Court cases beginning with the case of Gitlow v. New York in 1925, which cemented incorporation of the core protections of the First Amendment against the States, and clarified a robust conception of First Amendment liberty, which would protect citizens in each state from all levels of governmental action.
The modern North Carolina State Constitution had its last major update in 1971. Many of the original 1776 First Amendment-like provisions are retained with some updates in language more closely tracking the federal text. An express protection for the freedom of speech, absent in the original state constitution, was added to the free press clause; further conforming state constitutional language to federal constitution norms.
The incorporation of the First Amendment against the State of North Carolina, however, has opened up a narrow window of broader protections for core First Amendment rights on the rarely invoked basis of “adequate and independent state constitutional grounds.” In State v. Carter, the North Carolina Supreme Court found the State Constitution to provide broader protections for a fundamental right (in this case, the liberties guaranteed by the Fourth Amendment) than is offered by the incorporated Bill of Rights provision.
The Court in Carter writes that even when two provisions in the State and Federal constitution are identical, “we have the authority to construe our own constitution differently from the construction by the United States Supreme Court of the Federal Constitution, as long as our citizens are thereby accorded no lesser rights than they are guaranteed by the parallel federal provision.” The State Supreme Court has rarely used this adequate and independent state constitutional grounds power in interpreting declaration of rights provisions. But given the dual protections for core First Amendment freedoms in both the N.C. and U.S. constitutions, it is open for future State constructions of constitutional rights protections to broaden the sphere of protection beyond what is given by the Federal Bill of Rights.
The result of this history of “North Carolina’s First Amendment” is the recognition that core First Amendment liberties have been a hallmark of American constitutionalism from the beginning, even predating the U.S. Constitution. Though rights were often under-protected in the States before incorporation, most notably with regard to the natural rights of slaves and the liberties of African-Americans more generally, the Fourteenth Amendment sought to rectify the infringement of rights in the States. In so doing, the First Amendment became the floor of protection for its core liberties, but in North Carolina, “the ceiling is the roof” so to speak when it comes to First Amendment liberties. If the State Supreme Court decides the North Carolina Constitution provides greater protections for speech, press, conscience and the like, within its jurisdiction, than does the Federal Constitution, it is empowered to interpret its constitution for more liberty, but no less.
Brummer v. Wey: When Does an Injunction Go too Far?
By Devin Gustafson, Staff Member (Vol. 16)
October 25, 2017
Injunctions have long been a tool at the court’s disposal to stop harmful behavior. Judges use injunctions to prevent injustice and the possibility of irreparable harm, while balancing the likelihood of harming the public interest. A conceivable violation of the First Amendment, and an infringement on the rights of citizens, is certainly of public interest. A recent case granting an injunction in New York provides a potentially frightening example of when the scale tips the wrong way toward a constitutional violation. In December 2014, Christopher Brummer, a professor at Georgetown University Law Center, and a member of the National Adjudicatory Council for Financial Industry Regulatory Authority (FINRA), participated in a decision to permanently ban two stockbrokers from any FINRA-related firm.
About a month later, Benjamin Wey, who was upset by the FINRA ban but otherwise uninvolved in the decision, began posting about Brummer on the website, The Blot. The Blot is a website that combines journalism with unedited and opinionated content from readers. Wey is a publisher and frequent contributor on The Blot and has been convicted of sexual harassment, conduct which involved some defamatory posts on the website. Wey posted articles calling Brummer a “racist,” an “Uncle Tom,” accusing him of having an affair with a married woman, and implicating him in fraudulent behavior. Brummer, believing these statements to be defamatory and damaging to his reputation, sued Wey on April 22, 2015. Brummer further argued that Wey was inciting violence by posting pictures of Brummer next to lynching victims, and that Brummer felt threatened by Wey’s posts.
Despite Wey’s argument that his website is only opinion, and not statements of fact, the New York Supreme Court ordered an injunction on June 6, 2015, enjoining The Blot from “posting any articles about [Brummer] for the duration of this action.” This order required the removal of all articles posted about Brummer and also prevented Wey from posting anything further about Brummer. True, false, fact, or opinion—Wey was prohibited from writing about Brummer in any capacity. While recognizing the need to prevent people from feeling threatened, the breadth of this injunction violates Wey’s rights under the First Amendment. By preventing Wey from publishing any facts or opinions about Brummer, the court is breaking away from established precedent.
The History of Overbroad Injunctions
The Supreme Court has dealt many times with unconstitutional injunctions similar to that in the Brummer case. In Near v. Minnesota, The Saturday Press published multiple articles with “scandalous” and defamatory claims about the gambling and bootlegging activities of gangsters, the Jewish race, and the inadequate response by law enforcement. The lower court judge recognized a pattern of publishing similar to Wey’s pattern, and issued an injunction banning all “malicious, scandalous and defamatory” articles about anyone. The Court held that the Minnesota statute allowing this injunction was unconstitutional.
Courts have upheld injunctions against derogatory comments, but in a more limited manner than in the injunction against Wey. In Balboa Island Village Inn, Inc. v. Lemen, the Defendant, unhappy with the noise and disturbance caused by the Inn across from her home, made derogatory comments about the clientele, food, and alleged activities (such as drug trafficking and prostitution) taking place inside the Inn. An injunction against the Defendant, prohibiting her from repeating the defamatory comments, was deemed too broad; but an injunction, prohibiting the defendant from repeating statements to third parties that were found at trial to be defamatory, was “properly limited” and therefore did not violate the Defendant’s First Amendment rights.
Even more recently, courts have required limits on injunctions against future “similar” defamatory statements. In McCarthy v. Fuller, a lower court judge issued a permanent injunction against Defendants who had written defamatory statements about Plaintiffs’ devotion to their religious organization, and enjoined them from making “similar” statements in the future. This judge had not determined who made the statements and which of them specifically were defamatory. The 7th Circuit held that the prohibition of statements “not yet determined to be defamatory” was overbroad, a violation of the First Amendment, and considered this type of permanent injunction an issue of public interest.
What This Means for Wey
Wey appealed the injunction, and a New York appellate court did in fact narrow the injunction, but also affirmed parts of it. Wey was ordered to “remove all photographs or other images and statements from websites under defendants’ control which depict or encourage lynching; encourage the incitement of violence; or that feature statements regarding plaintiff that, in conjunction with the threatening language and imagery with which these statements are associated, continue to incite violence against plaintiff.” Given the sensitive nature of imagery related to lynching and the desire to make plaintiffs feel safe during litigation, I understand the rationale behind the injunction.
With this said, I think the risk to the public interest is greater than that of Mr. Brummer’s physical or reputational harm. This injunction would leave a lot of room for discretion about what constitutes violence-inciting language and eventually encroach further on First Amendment rights. Considering that the language or imagery has yet to be fully deemed defamatory, and that the injunction as it stands prohibits all language that encourages the incitement of violence, it will be interesting to see if the higher courts of New York will see this as a clear violation of the First Amendment (as others believe it is) or if this is a new example of a true threat.
What’s That Sign Say?: A Brief Examination of the Four Opinions in Reed v. Town of Gilbert
By Emily Jessup, Chief Staff Editor (Vol. 16)
April 19, 2017
Imagine you’re driving around town, when something catches your eye. You slow down, and look. There, right in front of you, spray painted in giant letters on the side of a house is this: “SCREWED BY THE TOWN OF CARY.” Huh? Why hasn’t the Town done anything about this? Well, they tried to do something and consequently, the Town of Cary found themselves in Court battling over whether their sign ordinance, which prohibited signs of that size, violated the First Amendment. Although the Town’s ordinance was eventually upheld as a reasonable restriction on speech, and thus not contrary to the First Amendment, the case went all the way to the Fourth Circuit Court of Appeals for a final decision.
This case highlights the potential for litigation where sign ordinances appear to intrude on speech rights. Prior to June, 2015, ordinances were generally found to be reasonable so long as they served a significant government interest, were narrowly tailored to that interest, left open alternative channels of communication, and were content neutral. However, in deciding Reed v. Town of Gilbert, Ariz., the Supreme Court flipped the script on governments around the country. The Supreme Court found in a 9-0 decision that the sign ordinances enacted by the Town of Gilbert violated the First Amendment as content-based restrictions on speech. The unanimous finding is misleading because four separate opinions were issued, which reflected divided views on the First Amendment analysis of content-neutrality. In this case, a small church with no permanent home challenged the Town of Gilbert’s sign code after they were cited several times for exceeding the time limits allowed for temporary directional signs. The District Court denied the Church a preliminary injunction, and the Ninth Circuit affirmed, concluding the code was content neutral. The Supreme Court granted cert and reversed the lower courts decisions.
The majority opinion delivered by Justice Thomas, and joined by Justices Roberts, Kennedy, Scalia, Alito, and Sotomayor, held that the Town of Gilbert’s Code imposed more stringent restrictions on “temporary directional” signs than other categories of signs. The majority found the categories of signs in the town’s sign code to be content based by stating “[t]he restrictions in the Sign Code . . . depend entirely on the communicative content of the sign” the sign ordinance is “[o]n its face . . . a content-based regulation of speech.” The Court held that “[g]overnment regulation of speech is content based if a law applies to a particular speech because of the topic discussed or the idea or message expressed.” Because the ordinance regulated signs differently based on their “category” (e.g., the code allowed ideological signs to be thirty-two sq. ft., but limited temporary directional signs to six sq ft.), the code was a content-based regulation in violation of the freedom of speech.
The Court appeared to recognize how demanding a standard for regulations they had established claiming the decision will not prevent effective sign laws because “a sign ordinance narrowly tailored to the challenges of protecting the safety of pedestrians, drivers, and passengers … well might survive.”
The concurrence authored by Justice Alito, and joined by Justices Kennedy and Sotomayor, is offered as “words of further explanation” to the majority opinion. This opinion offers a list of sign regulations it says would not be content-based such as rules regulating the size and location of signs; distinguishing between lighted and unlighted, restricting total number of signs allowed per mile of roadway, or time restrictions on signs advertising a one-time event. The opinion states, “[p]roperly understood, today’s decision will not prevent cities from regulating signs in a way that fully protects public safety and serves legitimate esthetic [sic] objectives.”
A concurrence in the judgment, authored by Justice Kagan and joined by Justices Breyer and Ginsburg critiques the broadness of the majority’s opinion noting many sign ordinances which impose regulations on some signs while exempting others are “now in jeopardy” “[g]iven the Court’s analysis.” Justice Kagan suggests an alternative analysis that allows the administration of “our content-regulation doctrine with a dose of common sense, so as to leave standing laws that in no way implicate its intended function.” Her analysis advises that when the marketplace is not in jeopardy and the government is not regulating signs based on favoritism, a lower standard of review may be appropriate.
A concurrence in the judgment, authored by Justice Breyer, is written to supplement Justice Kagan’s opinion. This opinion rejects the black and white approach taken by the majority: “content discrimination . . . cannot and should not always trigger strict scrutiny.” The better approach, according to Justice Breyer, is to use content discrimination analysis as “a supplement to a more basic analysis.” Breyer proposes to “treat content discrimination as a strong reason weighing against the constitutionality of a rule where . . . viewpoint discrimination, is threatened, but elsewhere treat it as a rule of thumb, finding it a helpful, but not determinative legal tool, in an appropriate case, to determine the strength of a justification.” This approach permits “the government to regulate speech in numerous instances where the voters have authorized the government to regulate.”
Each opinion comes to the same conclusion (that the Town of Gilbert’s sign ordinances violated the First Amendment), however their differences in reasoning leave the analysis for government regulations of speech unsettled. The majority opinion sweeps broadly, imposing a black and white approach to content neutrality—if you have to read the sign to know what regulations apply to it, the regulations are content-based—while the concurring opinions appear to try to limit the wide reach of the majority’s opinion through examples of valid regulations and suggestions of alternate analyses.
Though the majority opinion in this case clearly lays out their preferred analysis to determine content neutrality, courts around the country are left to grapple with the separate approaches and opinions presented in Reed, keeping the door open for further signage and speech litigation.
Stolen Valor; Stolen Voices
By Jack Middough, Staff Member (Vol. 15)
February 1, 2017
“What you’re doing right now is illegal,” yelled former infantry Ryan Berk, in parts both enraged and incredulous, “I’ve worn that fucking uniform and I’ve had friends get killed in Afghanistan wearing that fucking uniform.” Berk was documenting an incident of stolen valor, the act of making false statements or wearing the uniform or medals of United States military personnel. Unfortunately, these types of interactions have become germane, particularly around the holiday season, as frauds attempt to exploit holiday shopping deals reserved for veterans and active duty personnel. Originally codified as federal misdemeanors in 2005, the Stolen Valor Act has been the subject of several legal disputes, which lead to the Act’s revision in 2013. The most recent case, United States v. Swisher, cemented the Stolen Valor Act’s legacy: an unconstitutional abridgement of freedom of speech which allows charlatans to dilute and besmirch the uniform of the United States military.
The Stolen Valor Act
The Stolen Valor Act was enacted in 2005 and criminalized the fraudulent representation of oneself as an active or former United States serviceman. Specifically, the Act targeted both verbal and physical representations: 18 U.S.C. § 704(a) made it illegal to wear unauthorized medals, while § 704(b) made it illegal to falsely state that one had been in the military. In enacting this legislation, Congress sought to penalize and dissuade individuals from exploiting the military’s image for their own personal benefit, whether that benefit be favorable standing in social circles or the monetary gain of better discounts.
United States v. Alvarez was one of the first cases to challenge the Stolen Valor Act. After a man in Maine was arrested for falsely stating in a public meeting that he was a Congressional Medal of Honor Recipient, he challenged § 704(b) on the grounds that it was an unconstitutional abridgment of his right to freedom of speech. The Supreme Court agreed, and held that while the government’s interest in protecting the honor and reputation of those in the United States military was important, the government needed to prove that the law was “actually necessary” to curbing this speech. Because the government did not provide enough evidence to suggest that counter-speech, the reliance on others to speak out to correct falsehoods in the public forum, would suffice to curb stolen valor, § 704(b) was deemed unconstitutional.
United States v. Swisher involved a challenge to § 704(a). Defendant Swisher had been a Marine shortly after the Korean War. Swisher was honorably discharged in 1957, and on his discharge papers had listed no medals won. In 2001, Swisher filed a claim for service related PTSD for a covert Korean operation, of which he claimed to have been apart, during which he stated he was wounded and received several medals. A year later, the VA discovered that the claim had been fraudulent and ordered Swisher to repay for his claim benefits. In 2007, Swisher was indicted for 4 federal violations, among them a charge of violating the Stolen Valor Act by wearing unearned medals. A series of appeals followed to no avail, but after the decision in Alvarez, Swisher re-appealed on First Amendment grounds and the case went before the Ninth Circuit. Applying Justice Breyer’s intermediate scrutiny test from Alvarez, the Ninth Circuit held that § 704(a) was unconstitutionally broad, and did not have the necessary limiting factors to narrowly tailor the statute. The holding in Swisher now creates a circuit split with the Fourth Circuit in United States v. Hamilton, which upheld § 704(a) under Justice Kennedy’s strict scrutiny test from Alvarez.
Stolen Valor Moving Forward
Following the ruling in Alvarez, President Obama signed a revision to the Stolen Valor Act that criminalized the use of military medals or false service for monetary benefit. The revision aimed to harmonize more precisely what many felt was the true reason why acts of stolen valor are perpetuated. This revision, however, misses the point of the original legislation and the governmental interests at stake in Swisher and Alvarez. The government was not attempting to protect the profits that were being stolen under false pretenses, but was instead attempting to protect the reputation and honor associated with current and former members of the United States military. The paradigm shift represented in the Act’s 2013 revision leaves veterans and active duty servicemen and women lost in the shuffle; the medals that they fought and died for free to be exploited for all benefits not monetary. Compounding this issue is the fact that the average American lacks the intricate knowledge of the inner workings of the Armed Forces to act as effective counter-speakers against those stealing valor. Luckily, Ryan Berk and other members of the Armed Forces family will, and should, help bridge that gap this holiday season.
Unlicensed and Unheard: Stifling Segway Speech
By Mia B. Ragent, Staff Member (Vol. 14)
July 8, 2016
Do tour guide licensing requirements violate the Free Speech Clause? In the past year, tour guides in two major tourist-destination cities challenged licensing schemes to two different results. For guides in the city of New Orleans, the Fifth Circuit held that the enforcement of tour guide regulations served an important governmental purpose and was within the confines of its police power to implement. Kagan v. City of New Orleans, La., 753 F.3d 560 (5th Cir. 2014), cert. denied, 135 S. Ct. 1403, 191 L. Ed. 2d 361 (2015). The D.C. Circuit struck down a similar Washington D.C. regulation on the grounds that the government interest was not great enough, nor was the regulation sufficiently tailored to pass an intermediate scrutiny test. Edwards v. D.C., 755 F.3d 996 (D.C. Cir. 2014). The D.C. Circuit opinion concluded that while content-neutral, the licensing scheme was not implemented in the least restrictive way possible, a requirement for even facially-neutral laws. Id.
This blog post argues that the D.C. Circuit holding was appropriate while the Fifth Circuit holding was not, because both regulations chilled speech for essentially non-existent problems.
Founding Fathers & Bayou Ghosts
In 2014, five major cities across the country mandated that a private tour guide be licensed before conducting any tours, including Washington, D.C. and New Orleans, Louisiana. In Washington, D.C., the owners of Segs in the City , a Segway tour company based out of the capital, challenged the licensing scheme. The company, whose logo is a fusion of a hot pink martini glass and Segway Human Transporter, takes customers on “Segway Safari” adventures through monuments, past museums, and onto the off-road terrain of the National Mall.
The New Orleans regulations were challenged as well. These plaintiffs lead a variety of tours, the topics of which include regional cuisine, neighborhood history, and ghost and vampire folklore. While the tour experience may vary dramatically in the two cities, the licensing laws were nearly identical.
The licensing schemes in both Washington D.C. and New Orleans were content-neutral—they did not regulate what a tour guide could or could not say. Instead, they each required that guides pay a fee and pass both a background check and an extensive history exam in order to lead a tour (New Orleans required an additional drug test as well). In both cities, the governments stated that the regulations were necessary to protect basic public safety and the tourism industry. Brief of Defendant-Appellee at 11, Edwards v. District of Columbia , No. 13-7064 (D.C. Cir. 2013); Brief in Opposition at 1, Kagan v. City of New Orleans , No. 14-585 (U.S. 2015).
Licensing Schemes Lack Muster to Pass Heightened Scrutiny
Neither court considered the regulation of tour guide speech to be a regulation of commercial speech (expressions related solely to the economic interests of the speaker which are not inherently protected), but both applied the intermediate scrutiny test for commercial speech established in Central Hudson, because the licensing schemes regulated an economic activity with inherent expressive speech. Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of New York, 447 U.S. 557, 573, 100 S. Ct. 2343, 2355, 65 L. Ed. 2d 341 (1980). Central Hudson held that speech suppression is permitted whenever it directly advances a substantial governmental interest and is not more extensive than is necessary to serve that interest. Id.
The Central Hudson test requires that a law infringing on the First Amendment must meet five specifications: (1) it is within the constitutional power of the Government; (2) it furthers an important or substantial governmental interest; (3) the governmental interest is unrelated to the suppression of free expression; (4) the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest, and (5) the regulation leaves open ample alternative channels for communication. Id at 2531.
For the New Orleans regulation, the Fifth Circuit reasoned that the licensing process was content-neutral (it did not dictate what a tour guide could/could not say on a tour), and that requirement of a drug test and a history exam furthered the city’s substantial interests in protecting both the tourism industry and the public from criminals. Kagan v. City of New Orleans La. , 753 F.3d 560 (5th Cir. 2014).
For the D.C. regulation, however, the D.C. Circuit held the District had failed to present any evidence that the problems it sought to thwart actually existed. What’s more, the court asserted that the government failed to demonstrate that the exam was an appropriately tailored antidote. Finally, the court concluded that the District had provided no explanation for using less restrictive but more effective means of accomplishing its objectives. Edwards v. D.C. , 755 F.3d 996 (D.C. Cir. 2014) .
While the two courts agreed on how to apply the majority of the Central Hudson test, they disagreed that the respective cities had an important or substantial interest at stake, and that the restriction on the First Amendment freedoms were no greater than necessary to protect that interest. The Fifth Circuit appeared to accept New Orleans’ rationale at face value, concluding that “without those protections for the city and its visitors, the government interest would be unserved.” Kagan v. City of New Orleans, 753 F.3d 560 at 561 ( 5th Cir. 2014). The court reached this conclusion even though the city only produced two total instances of unlicensed tour guides, and there was no evidence that these guides had harmed or defrauded anyone. Id.
The D.C. Circuit took a more probing look into the problem that was sought to be remedied by the regulation, and found similarly laughable statistics, in addition to irreconcilable theories on market forces and crime prevention. “What, pray tell, does passing the exam have to do with regulating unscrupulous tour businesses and unethical guides? How does memorization of addresses and other, pettifogging data about the District’s points of interest protect tourists from being swindled or harassed by charlatans?—surely, success on the District’s history exam cannot be thought to impart both knowledge and virtue.” Edwards v. D.C., 755 F.3d 996 at 1007 (D.C. Cir. 2014) .
The D.C. Circuit agreed that public safety and tourism could produce substantial government interests, but with a proper examination of the facts at hand properly concluded that the regulation was unnecessary to constitute an acceptable limitation on protected speech under the Central Hudson test.
Implications Beyond Segway Tours
Whether or not to tip a guide who makes corny jokes or breathes too heavily into the microphone is up for debate, but whether or not these licensing schemes stifle free speech should not be. The D.C. Circuit was correct in holding that under an intermediate scrutiny analysis, the regulatory scheme prevented tour guide operators from becoming licensed, and therefore pre-chilled their speech. It was neither sufficiently narrowly tailored, nor had the city proven the harm that necessitated regulation in the first place.
While tour guide licensing may seem mundane, the issue of regulation of unlicensed professionals bleeds into every aspect of modern life. Occupational licensing requirements are currently being litigated in lower courts across the country, with many plaintiffs raising First Amendment objections. From a diet blogger in North Carolina, Cooksey v. Futrell , 721 F.3d 226 (4th Cir. 2013), to a virtual veterinarian in Texas, Hines v. Alldredge , 783 F.3d 197 (5th Cir. 2015), to a newspaper advice columnist in Kentucky, Rosemond v. Markham , No. CV 13-42-GFVT, 2015 WL 5769091 (E.D. Ky. Sept. 30, 2015), what a locality may censor and when exactly an intermediate scrutiny test is appropriate are questions left unanswered by the Supreme Court. New Orleans Mun. Code Part II, Chap. 30, Art. XXI, § 30-1551, D.C. Mun. Regs. tit. 19, § 1200.1 (2010)
Federal Court Strikes Down National Security Letters on First Amendment Grounds
By Anderson A. Chang, Symposium Editor (Vol. 12)
March 24, 2013
While the potential use of drones on American soil and the disputed authority of the government to indefinitely detain American citizens captured on U.S. soil have dominated the headlines and the attention of civil libertarians in recent months, the Obama administration continues other controversial domestic counter-terrorism measures that go along relatively unnoticed by the public. Last week, a Federal District Court in California gave a respite to civil liberties in the ongoing war on terror as it enjoined on First Amendment grounds the federal government’s further use of National Security Letters.
Since the 1980s, the National Security Letter Statute has allowed the Federal Bureau of Investigation to compel the surrender of subscriber information from communication service providers upon an agency certification that such information was relevant to the investigation of international terrorism or foreign intelligence activities. Along with the power to compel such information, the FBI has the authority to place a gag order on the communication service provider, preventing it from disclosing the release of such information. According to an Inspector General’s report (), nearly 200,000 National Security Letter requests were sent between 2003 and 2006, with U.S. persons increasingly being the target of such requests.
Judge Susan Illston of the Northern District of California enjoined the law based on its nondisclosure requirement, finding it to be both a prior restraint and a content-based restriction on speech. Closely tracking a 2008 Second Circuit ruling () on National Security Letters, Judge Illston held that while the nondisclosure requirement was not a “classic prior restraint” or a “broad” content-based prohibition on speech that would ordinarily afford the speech restriction the “most rigorous First Amendment scrutiny,” it was “sufficiently analogous” to them to justify a requirement of heightened procedural safeguards under Freedman v. Maryland. The court was particularly concerned with the government’s expansive power and the accompanying authority to silence speech about government conduct:
Under Section 2709(c), the FBI has been given unilateral power to determine, on a case-by-case basis, whether to allow NSL recipients to speak about the NSLs. As a result, the recipients are prevented from speaking about their receipt of NSLs and from disclosing, as part of the public debate on the appropriate use of NSLs or other intelligence devices, their own experiences. In these circumstances, the Court finds that Section 2709(c) does not need to satisfy the extraordinarily rigorous Pentagon Papers test, Section 2709(c) must still meet the heightened justifications for sustaining prior-restraints…and must be narrowly tailored to serve a compelling governmental interest.
Furthermore, the court was especially concerned about the overbreadth of the nondisclosure requirement:
The problem, however, is that the statute does nothing to account for the fact that when no such national security concerns exist, thousands of recipients of NSLs are nonetheless prohibited from speaking about the mere fact of their receipt of an NSL…This is especially problematic in light of the active, continuing public debate over NSLs…Indeed, at oral argument, Petitioner was adamant about its desire to speak publicly about the fact that it received the NSL at issue to further inform the ongoing public debate.
The Second Circuit saved the statute despite its constitutional infirmities by reading into the statute certain procedural safeguards, including timely judicial review and placing of the burden on the government. Judge Illston, however, was not convinced, after the Second Circuit’s opinion, that the FBI had implemented sufficient safeguards, and enjoined the entire law.
Judge Illston’s opinion is no doubt a welcome relief for civil libertarians and those concerned with the government’s increasing use of power to fight the war on terror.
The opinion is strongly supported by existing First Amendment jurisprudence, which has put debate on public issues and public policy at the “highest rung () of the hierarchy of First Amendment values,” and afforded restrictions on such speech the highest scrutiny. Within the realm of public debate, the Court has been especially cautious towards restrictions on speech regarding the conduct of law enforcement officials because of their unique position of authority, which allows them to restrict the civil liberties of individuals. In a nation based on notions of self-government, the citizens must have the ultimate authority to decide matters of public policy. It is hard to imagine an area of more pressing public concern than the invasion of the constitutional privacy interests of citizens by law enforcement officials, especially when it is done in the name of national security.
Liberals and Conservatives Rally Behind First Amendment Defense against Intimidation Statute
By Howard M. Lintz, Staff Member (Vol. 11)
March 3, 2013
News outlets, media advocates, conservative and liberal groups, and First Amendment scholars have joined in filing an amicus brief () to the Indiana Supreme Court, claiming that the state’s criminal law barring intimidation violates the First Amendment. The criminal case () began with the defendant’s divorce proceedings.
When Daniel Brewington’s ex-wife filed for divorce, the court assigned two psychologists to evaluate custody options; they recommended assigning Brewington’s ex-wife sole custody and Brewington visitation rights. The Court of Appeals of Indiana stated that Brewington responded with “a torrent of abusive letters demanding that Dr. Connor release his entire file to him, withdraw the evaluation, and withdraw from the case.” He accused the doctors of “dishonest, malicious, and criminal behavior” and “unethical and criminal practices.” He also began blogging and using established Web sites to communicate messages to the same effect.
Judge James D. Humphrey, finding Brewington to be “irrational, dangerous and in need of significant counseling,” assigned Brewington’s ex sole custody, with Brewington receiving no visitation rights until a court-appointed mental-healthcare provider determined that Brewington posed no danger to himself, his ex, or his children.
Brewington filed a motion for relief from judgment, claiming that Judge Humphrey had conspired to obstruct Brewington’s access to evidence, “conducted himself in a willful, malicious, and premeditated manner,” and “caused irreparable damage to [the children through] Court mandated child abuse.” He also asserted that he would post the pleading on his blog and would distribute it through other outlets, along with a letter urging readers to send comments to “the Ethics & Professionalism Committee Advisor located in Dearborn County,” identifying that official as Judge Humphrey’s wife and including their home address. Mrs. Humphrey’s duties did not include review of judicial conduct. A number of Brewington’s readers followed up on his solicitation.
Following the divorce, Brewington posted fifteen blog or Facebook entries about one of the evaluating psychologists, including a claim that he used custody evaluations “as a means to gain some kind of perverted sexual stimulation.” He posted nine entries about Judge Humphrey, calling him “corrupt,” accusing him of “unethical/illegal behavior,” calling him a child-abuser, and writing, “[T]his is like playing with gas and fire, and anyone who has seen me with gas and fire knows that I am quite the accomplished pyromaniac.”
Brewington was convicted of several misdemeanor and felony offenses: three counts of intimidation and one count each of obstruction of justice, perjury (for falsely stating that he did not know that Mrs. Humphrey was Judge Humphrey’s wife). The Court of Appeals upheld four of the convictions, including one count of intimidation.
The Indiana statute prohibits “communicat[ing] a threat to another person, with the intent . . . that the person be placed in fear of retaliation for a prior lawful act. . . .” Humphrey apparently did feel threatened: He took a training course on using a gun, installed a home-security system, and received police escorts to and from work. Where threats are concerned, this seems largely normal.
UCLA law professor and blogger Eugene Volokh, who gathered the parties to the amicus brief, identifies part of the problem as the statute’s definition of “threat”: Beyond threats of violence, it includes threats to “expose the person threatened to hatred, contempt, disgrace, or ridicule. . . .”
As reported by USA Today, Volokh’s concern is that the statute, and this appellate holding in particular, “endangers the free speech rights of journalists, policy advocates, politicians, and ordinary citizens. . . . If the Court of Appeals decision is allowed to stand, then much criticism of legislators, executive officials, judges, businesspeople, and others — whether by newspapers, advocacy groups, politicians, or other citizens — would be punishable.”
The amicus brief () identifies a number of acts that we might be alarmed to see a statute criminalize:
- a columnist’s writing, “Legislator A’s vote on issue B is ridiculous, and I intend to ridicule him until his constituents view him with contempt”;
- an advocacy group’s picketing a store with signs saying, “The store owner’s decision to stock product C is disgraceful, and we hope our speech will expose the owner to disgrace and ostracism”;
- a politician’s saying, “The incumbent’s decision D is so foolish that, once I publicize it, the incumbent will be the laughingstock of the state.”
- a blogger’s writing, as in this case, “The judge who restricted my visitation rights was in effect abusing my children through the legal process,” with the implied statement, “and I will keep publicly criticizing the judge’s actions.”
“The First Amendment protects the right of citizens to criticize government decisions with which they disagree. . . . However, the conduct that is criminalized here, communicating a threat to a victim to place the victim in fear of retaliation for a prior lawful act, necessarily falls outside the realm of protected criticism of government decisions due to the requirement of criminal intent.”
The ACLU of Indiana has filed a separate brief. The state supreme court has not yet granted certiorari.
The First Amendment Threat to Public Health
By Alexandria N. Bryant, Staff Member (Vol. 11)
February 10, 2013
The District II Wisconsin Court of Appeals did not agree with the circuit court’s ruling that Wisconsin Statute §940.32 was a facially overbroad regulation of protected speech in violation of Gary Hemmingway’s First Amendment rights. As reported by the Wisconsin State Bar, Hemmingway was found guilty of stalking his ex-wife, Rebecca, after sending her intimidating text messages, phone calls, and e-mails. Excerpts of the communications between Hemmingway and Rebecca include him telling her “that he would love to see someone holding a gun to her and for her to be begging for her life.” He also told her that “the only way she could feel his pain would be if both her sons died at the same time.” These and other threats, coupled with Hemmingway’s prior charges of aggravated battery and negligent use of a dangerous weapon, caused Rebecca to fear for her and her sons’ lives and suffer serious emotional harm.
Wisconsin’s stalking statute reads in part: “(2) Whoever meets all of the following criteria is guilty of a Class I felony:
- The actor intentionally engages in a course of conduct directed at a specific person that would cause a reasonable person under the same circumstances to suffer serious emotional distress or to fear bodily injury to or the death of himself or herself or a member of his or her family or household.
- The actor knows or should know that at least one of the acts that constitute the course of conduct will cause the specific person to suffer serious emotional distress or place the specific person in reasonable fear of bodily injury to or the death of himself or herself or a member of his or her family or household.
- The actor’s acts cause the specific person to suffer serious emotional distress or induce fear in the specific person of bodily injury to or the death of himself or herself or a member of his or her family or household.”
Therefore, the defendant must intend that his conduct will cause the plaintiff to fear bodily injury or suffer serious emotional distress and the plaintiff must actually endure these harms. Like other criminal offenses that require proof of scienter, the defendant’s words may be used as circumstantial evidence to prove his intent. However, the speech is not what the statute attempts to regulate.
In a First Amendment overbreadth charge, the plaintiff must first show that the statute regulates protected speech and not conduct. If this prong is satisfied, the statute is analyzed under strict or intermediate scrutiny, depending on whether the regulation is content based or content neutral. Here, the court concluded that Wisconsin’s stalking statute criminalizes the intentional course of conduct to inflict harm and not the speech incident to this conduct.
In a similar case, State v. Robins (), dealing with speech incident to a charge of child enticement, the Wisconsin Supreme Court ruled that because “an act . . . is initiated or carried out in part by means of language does not make the . . . statute susceptible of First Amendment scrutiny.” The Court of Appeals agreed. Gary Hemmingway’s crime was intending to cause his ex-wife to fear bodily injury or death. “While the offense of stalking does contain an element of speech, this speech does not fall within the protection of the First Amendment.” People v. Bailey, 657 N.E.2d 953, 961-62 (Ill. 1995).
The New York Times and Free Speech
By Charlotte R. Stewart, Managing Editor (Vol. 12)
October 8, 2012
The New York Times has recently adopted a new policy authorizing reporters to refuse to cede editorial authority to sources. “Quotation approval” refers to the practice by reporters of granting sources “as a condition of an interview, that quotes be submitted afterward to the source or a press aide to review, approve or edit.” Absent this agreement, subjects decline to be interviewed, meaning that as a matter of good business practice, reporters must acquiesce in order to gain the access they need to do their jobs. In July of this year, Jeremy Peters, political reporter for the New York Times, published an article describing the impact of after-the-fact quotation approval on campaign reporting. In response, the Times’ Public Editor, Margaret Sullivan, called for the Times to adopt a new policy to combat this industry-wide practice.
Publishing spontaneous speech by political and government figures keeps the public informed about its leaders and bolsters professionalism among journalists. Insofar as the new policy is directed at this end, the Times has taken a commendable step towards restoring public confidence in the Fourth Estate. They have also taken a risk that choosing to retain editorial authority over quotations will not jeopardize their reporters’ access to key political figures. For those who are cynical about whether there will be any effect on industry practice or Beltway press relations, a brief illustration of the Times’ past successes is in order.
In New York Times v. Sullivan, the Supreme Court held that “the Constitution delimits a State’s power to award damages for libel in actions brought by public officials against critics of their official conduct.” The Times won its case, benefiting not only the national press but the civil rights movement as well. Unburdened by the prospect of defending and paying costly libel actions, smaller regional papers and groups were free to disseminate information describing controversial acts by public figures.
In the 1971 case New York Times v. United States, the Times and other papers famously won the right to publish the Pentagon Papers despite assertions by President Nixon that national security was an overriding concern. Justice Hugo Black explained in his concurrence not only why the government’s interest did not outweigh the presumption that prior restraints on speech are unconstitutional, but that the preliminary injunctions attending these challenges were themselves a threat to free speech. Justice Black stated that the Founding Fathers’ intent in protecting the press was so that it could “fulfill its central role in our democracy,” including the responsibility to “effectively expose deception in government.” He further posited that “the guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic.” Those interested in exploring the ultimate impact of this case can find invaluable resources.
The collateral impact of these battles on civil rights, foreign policy, and domestic security exemplifies why a free press is vital to a sound republic. It remains to be seen whether the Times’ policy of rejecting quotation approval will ultimately lead to a more informed public, or if it will merely restrict access to key government officials. The latter would be unfortunate. Amidst concerns about the declining relevancy of newspapers in America, the question arises: If institutions like the Times are not around to fight for a free press, to whom does the responsibility fall?