During oral argument in Reichle v. Howards the justices of the Supreme Court were understandably skeptical about allowing a man to sue a group of Secret Service agents for "retaliation" where there was probable cause for the agents to arrest the man. On the other hand, the Court struggled to find a way not to give the Secret Service – or the police generally - carte blanche to arrest protesters for pretextual reasons.

The Supreme Court heard oral argument in Reichle v. Howards on March 21. The facts of the case are set forth in this earlier post. Essentially, Mr. Howards made some rude remarks about the Iraq War to Vice-President Dick Cheney in a public mall and touched him or pushed him on the shoulder. Later when confronted by the Secret Service Howards lied and denied that he had touched Mr. Cheney. Howards was promptly arrested. Howards sued the agents on the theory that they had arrested him not because they had probable cause (which they clearly did) but rather because they disagreed with what he had said to the Vice-President. The Tenth Circuit Court of Appeals ruled that Howards had the right to bring this lawsuit.

On the one hand, this seems like an easy case. The Secret Service has an important and difficult job to do. They have to protect our nation's leaders and we don't want them worrying about being sued by every protester who is properly arrested for harassment. On the other hand, do we really want to give the police immunity when they arrest someone for trespassing, littering, jaywalking, or driving with a broken taillight just because they don't like what the person has to say?

What makes this case more difficult is the fact that we don't allow the police or even the Secret Service to arrest people because of their race. The courts are not about to graft an exception onto the Equal Protection Clause for law enforcement officers even when they have responsibility for protecting the President of the United States. So how can we and why should we create such an exception to the First Amendment?

My impression from oral argument is that the justices are inclined to reverse the Tenth Circuit and rule in favor of the Secret Service agents by dismissing the lawsuit. A clue as to how the Court might do this was apparent from a question that Justice Stephen Breyer asked Sean Gallagher, the attorney representing the Secret Service agents:

And the — the question I wanted to ask you there is, you make a very strong case where the President and Vice President are involved, the need to protect them, but the rule that you there adopt is a rule that will apply to every police officer, anyone who arrests anyone anywhere in the country, and no matter how clear it is that the motive was retaliation against a point of view, that individual will be protected from a Bivens action.
So, it sounds as if your first claim — the remedy sweeps well beyond the need that you sketch. And so, I'd like your response to that. (p. 6)

In other words, the Court might adopt a rule granting immunity from First Amendment retaliation claims only to those law enforcement officers who are performing protective services. Furthermore, that immunity would apply only in situations where the police otherwise had probable cause to arrest the protester. I believe that this is how the Court is likely to rule.

Wilson Huhn teaches Constitutional Law at The University of Akron School of Law.

Dozens of prominent American political figures from both political parties may have violated the federal anti-terrorism law by advocating that the MEK should be removed from the list of designated terrorist organizations. Because of the Supreme Court's decision in Holder v. Humanitarian Law Project (2010), what they said may not be not protected by the First Amendment.

The MEK, known in English as the "People's Mujahadeen of Iran," is a large military organization that has shifted its ideology and allegiance many times over the years. Before 1979 the organization mounted many attacks against westerners in Iran and assassinated several Americans. In 1979 it supported taking the American diplomats in Teheran hostage. After the Iranian Revolution the MEK began fighting the new Iranian leadership; it found refuge in Iraq and fought alongside Saddam Hussein against both Iran and Iraq's own Kurdish population. Over the years the MEK has been accused of numerous war crimes and human rights violations. In 1997 the State Department added the MEK to the list of designated terrorist organizations. Recently the group has been implicated in the assassination of Iranian scientists.

The MEK, of course, wishes to be removed from the State Department list of designated terrorist organizations, and it has persuaded many prominent Americans to support its efforts.  The Huffington Post has published a list of 33 leading Democrats and Republicans who spoke on behalf of the MEK at MEK-related meetings and conferences over a seven-month period between December 2010 and July 2011. The first two names on the list, which is arranged alphabetically, are former U.S. Senator Evan Bayh, a Democrat, and former U.N. ambassador John Bolton, a Republican. Gus Taylor of the Washington Times reports that Ed Rendell, former Governor of Pennsylvania, and other prominent figures earned speaking fees for their appearances on behalf of the MEK. Ryan J. Reilly at Talking Points Memo also reports that several of the speakers earned fees. Glenn Greenwald at Salon argues that even if the speakers were not paid, the speakers may have broken the law, because the Supreme Court ruled in the Humanitarian Law Project case that advocacy for terrorist organizations may be punished if it is "coordinated" with the terrorist organization.

Is Greenwald right?  Have these American politicians stepped beyond the bounds of the First Amendment as interpreted by the Supreme Court and violated the law?

The federal statute that governs this matter is the Antiterrorism and Effective Death Penalty Act.  The law prohibits people from providing "material support" to a terrorist organization. The key legal issue in this case is whether what these political figures said constitutes "material support." The key factual issue is whether they made these statements at the request of or in coordination with the MEK.

The federal Antiterrorism and Effective Death Penalty Act is codified at 18 U.S.C. 2339B.  It provides, in relevant part:

The term "material support" is defined at 18 U.S.C. 2339A.  The relevant portions of that statute provide:

the term �material support or resources� means any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (1 or more individuals who may be or include oneself), and transportation, except medicine or religious materials.

the term �expert advice or assistance� means advice or assistance derived from scientific, technical or other specialized knowledge.

The Humanitarian Law Project challenged the constitutionality of this law as applied to peaceful advocacy. The HLP and other advocacy groups wanted to work with terrorist organizations to train them how to achieve their goals through peaceful means. They wished to teach organizations such as the PKK (a Kurdish terrorist organization) or the LTTE (a Sri Lankan terrorist group) how to effectively lobby institutions such as Congress or the United Nations or how to apply for grants for peaceful purposes such as water projects. The HLP and other humanitarian groups claimed that they have the right, under the First Amendment, to work with terrorist groups to turn them into the paths of peace.

The United States Supreme Court, by a vote of 6 to 3, rejected the constitutional claims of the Humanitarian Law Project. The majority of the Court found that advocacy on behalf of a terrorist organization is constitutionally protected only if the speech is undertaken wholly independently of the organization. If the "service" is rendered in coordination with the terrorist organization, then it falls outside the protection of the First Amendment and the government may impose criminal sanctions for such speech. Here are the key portions of Chief Justice Roberts' opinion:

the statute is carefully drawn to cover only a narrow category of speech to, under the direction of, or in coordination with foreign groups that the speaker knows to be terrorist organizations.

The statute reaches only material support coordinated with or under the direction of a designated foreign terrorist organization.  Independent advocacy that might be viewed as promoting the group's legitimacy is not covered.

Congress has avoided any restriction on independent advocacy, or indeed any activities not directed to, coordinated with, or controlled by foreign terrorist groups.

One of the principal reasons that Chief Justice Roberts offered in support of the ban on "material support" for terrorist organizations was that such support lends "legitimacy" to a terrorist organization:

Material support meant to "promot[e] peaceable, lawful conduct," Brief for Plaintiffs 51, can further terrorism by foreign groups in multiple ways.  "Material support" is a valuable resource by definition.  Such support frees up other resources within the organization that may be put to violent ends.  It also importantly helps lend legitimacy to foreign terrorist groups–legitimacy that makes it easier for those groups to persist, to recruit members, and to raise funds–all of which facilitate more terrorist attacks.

In a powerful dissenting opinion, Justice Breyer, joined by Justices Ginsburg and Sotomayor, rejected the majority's "legitimizing" rationale for upholding the law:

But this "legitimacy" justification cannot by itself warrant suppression of political speech, advocacy, and association.  Speech, association, and related activities on behalf of a group will often, perhaps always, help to legitimate that group.  Thus, were the law to accept a "legitimating" effect, in and of itself and without qualification, as providing sufficient grounds for imposing such a ban, the First Amendment battle would be lost in untold instances where it should be won.  Once one accepts this argument, there is no natural stopping place.  The argument applies as strongly to "independent" as to "coordinated" advocacy.

Breyer emphasized that independent advocacy on behalf of a terrorist organization is at least as likely to "legitimize" a group as coordinated advocacy is:

Nor can the Government overcome these considerations simply by narrowing the covered activities to those that involve coordinated, rather than independent, advocacy. Conversations, discussions, or logistical arrangements might well prove necessary to carry out the speech-related activities here at issue (just as conversations and discussions are a necessary part of membership in any organization).  The Government does not distinguish this kind of "coordination" from any other.  I am not aware of any form of words that might be used to describe "coordination" that would not, at a minimum, seriously chill not only the kind of activities the plaintiffs raise before us, but also the "independent advocacy" the Government purports to permit.  And, as for the Government's willingness to distinguish independent advocacy from coordinated advocacy, the former is more likely, not less likely, to confer legitimacy than the latter.  Thus, other things being equal, the distinction "coordination" makes is arbitrary in respect to furthering the statute's purposes.  And a rule of law that finds the "legitimacy" argument adequate in respect to the latter would have a hard time distinguishing a statute that sought to attack the former.

The speeches and appearances by American political leaders on behalf of the MEK are quite literally intended to "legitimize" the groups by having it removed from the list of designated terrorist organizations. They therefore fall within the ambit of the statute's purpose, as interpreted by the majority of the Supreme Court.

Do these speeches constitute "material support" for the MEK within the meaning of the statute?

From a lay perspective the speeches advocating the legitimization of the MEK would clearly constitute "material support" for the organization. As a matter of statutory construction, speeches on behalf of the MEK would constitute either a "service" or "expert advice or assistance" under 18 U.S.C. 2339A.

The final question is whether or not the speeches and appearances by American political figures on behalf of the MEK were "independent advocacy" or were "coordinated" with the organization.  Greenwald quotes a State Department official describing how these speaking engagements are often arranged:

�Your speech agent calls, and says you get $20,000 to speak for 20 minutes. They will send a private jet, you get $25,000 more when you are done, and they will send a team to brief you on what to say.�

If this is how the speaking appearances were arranged, they would clearly seem to constitute "coordination" with a terrorist organization.

Greenwald decries the fact that many individual Muslims in the United States have been prosecuted and imprisoned for offering far less "material support" to designated terrorist organizations than these mainstream Christian politicians have tendered to the MEK. On First Amendment grounds Greenwald does not support the anti-terrorism law insofar as it punishes political speech, but on fairness grounds he does support the ongoing investigation into the activities of the MEK supporters.

The problem with the anti-terrorism law and the Supreme Court's decision in Holder v. Humanitarian Law Project is a recurring one in American history. It is the same problem we have faced in every major conflict. During war or the threat of war the people are afraid and the government enacts laws prohibiting advocacy on behalf of the nation's enemies. The Alien and Sedition Act was enacted by the Adams administration during the undeclared war with France; Lincoln suspended habeas corpus and prosecuted Copperhead leaders in military tribunals during the Civil War; the Espionage Act was intended to squelch opposition to World War I; the Smith Act, enacted during the Cold War, made it a crime to belong to the Communist Party; Amendments to the Selective Service Act adopted during the Vietnam War made it a crime to burn a draft card; and now the Antiterrorism Act outlaws "material support" for terrorist organizations, including speech that is directed at lawful and peaceful purposes.

There is a hopeful aspect to this history.  During wartime, the courts have generally upheld these types of laws repressing speech. Once the threat has passed, however, the courts have almost always recognized that those laws violate the First Amendment.  It is safe to predict that this apsect of the Antiterrorism law will also be declared unconstitutional once the fear of terrorism fades.

But it is not enough that we should enjoy freedom of speech only when the country is not afraid.  As Justice Robert Jackson said at the height of World War II in West Virginia Board of Education v. Barnette (1943):

It is also appropriate to remember the words of Justice Louis Brandeis about fear and the First Amendment. During the first Red Scare, in arguing in support of an American's right to help organize the Communist Party, he told us that "those who won our independence were not cowards," and that "fear breeds repression."

We should not be so afraid of terrorism that we sacrifice our most cherished tradition: the right to speak freely. The Supreme Court's decision in Holder v. Humanitarian Law Project should be overruled.

The entire passage from Brandeis' opinion in Whitney v. California is set forth below.

***

Those who won our independence believed that the final end of the state was to make men free to develop their faculties, and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law-the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.

Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one. Every denunciation of existing law tends in some measure to increase the probability that there will be violation of it. Condonation of a breach enhances the probability. Expressions of approval add to the probability. Propagation of the criminal state of mind by teaching syndicalism increases it. Advocacy of lawbreaking heightens it still further. But even advocacy of violation, however reprehensible morally, is not a justification for denying free speech where the advocacy falls short of incitement and there is nothing to indicate that the advocacy would be immediately acted on. The wide difference between advocacy and incitement, between preparation and attempt, between assembling and conspiracy, must be borne in mind. In order to support a finding of clear and present danger it must be shown either that immediate serious violence was to be expected or was advocated, or that the past conduct furnished reason to believe that such advocacy was then contemplated.

Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. To courageous, selfreliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom. Such, in my opinion, is the command of the Constitution. It is therefore always open to Americans to challenge a law abridging free speech and assembly by showing that there was no emergency justifying it.

Louis Brandeis, from Whitney v. California (1927)

Rush Limbaugh has a long history of demeaning people based upon their gender, race, religion, and sexual orientation. His record is a perfect demonstration of the fact that in the context of a public address hate speech is protected by the First Amendment. That does not mean that other people have to put up with it.

The Constitution protects many categories of speech that other people find offensive. People have the right to distribute, read, and view pornography. People have the right to burn the American flag in protest. People have the right to advocate that there be a Communist revolution. People have the right to praise Islamic terrorists.

People also have the right to make statements that are misognynistic, racist, anti-gay, and Islamophobic. Over the years Rush Limbaugh has persistently exercised his right to freedom of speech in those ways. It is the centerpiece of his political philosophy, the foundation of his entire career. As a white, straight, christian male he believes that he is superior to all other people who do not share all of those characteristics. I won't repeat his despicable language.  If you choose you may see his statements by linking to any of the following sites that have recorded the "highlights"  of his broadcasting career:

Gane McCalla, at NewsOne, Republished! Top 10 Limbaugh Racist Quotes (don't miss the ones set forth in the comments!);

John H. Richardson, Esquire, The Rush Limbaugh Racism No One's Paying Attention To (editor's note to John: A preposition is a terrible thing to end a sentence with!);

John K. Wilson, Rush's 53 Smears Against Sandra Fluke (in case you thought that Rush just "misspoke" when he called Fluke a couple of vile names);

Adam Clark Estes, Rush Limbaugh's Latest Verbal Victim Feels Derided, Dismissed (the day after he apologized to Fluke Limbaugh viciously attacked another woman).

Limbaugh has long kept Media Matters for America busy.  Their research department has compiled a lengthy list of Limbaugh's "greatest hits:"

The 20 Worst Racial Attacks Limbaugh's Advertisers Have Sponsored

15 Of Limbaugh's Most Offensive And Controversial Comments Targeting Immigrants

Rush Limbaugh's Worst Advertiser-Sponsored Attacks On The LGBT Community

"Feminazi": The Origin of Limbaugh's Trademark Slur Against Women

Rush Limbaugh's Decades Of Sexism And Misogyny

Limbaugh: Islam "Most-Known" for Its "Terrorist Wing"

Limbaugh calls Islamic cultural center "a victory monument at Ground Zero"

The 10 Worst Advertiser-Sponsored Moments Limbaugh Laughed At Human Suffering

UPDATED: Limbaugh's Misogynistic Attack On Georgetown Law Student Continues With Increased Vitriol

10 Of Limbaugh's Worst Advertiser-Sponsored Attacks On The Poor

No-one may be prosecuted, fined, or put in jail for indulging in any of these forms of hate speech.

But society does place limits on the time, place, or manner of speech. I wouldn't recommend bringing pornography to work or posting it in one's cubicle. It's probably unwise for a student to burn an American flag in his or her dormitory. You might think twice before calling someone a vile name at work or at school. Just because hate speech is constitutionally protected from criminal prosecution does not mean that it must be tolerated at all times or places. If Rush were to speak to one of his employees the way he so often speaks on the air he would be subject to sanction under non-discrimination laws.  If as a student he were to repeat some of his on-air comments in class he might be removed from the classroom, suspended, or expelled.  In 2003, Limbaugh's mercifully short tenure as a ESPN commentator came to a close after he made gratuitous, racist remarks about quarterback Donavan McNabb.  The law may not punish hate speech, but that does not mean that there are not consequences for it.

As the host of a talk radio show Limbaugh is relatively insulated from legal consquences for engaging in hate speech.  The law rightfully imposes few limits on a person who is addressing the public.  Among those limits: the speaker may not incite a riot; the speaker may not defame individuals; and the speaker may not depict obscenity.  Short of those circumstances, however, as a radio host or a commentator Limbaugh can say or write whatever he wants and the law can and should do nothing about it.

The remedy for bad speech is more speech. Those who disagree with Limbaugh's message of hate can speak out against it, as I do today; refuse to listen to his programs; or boycott his sponsors. All of these responses, as well, are protected by the First Amendment.

Those of you who are inclined to defend Limbaugh, please don't pretend "everybody talks like this." No decent person does. Please don't try to justify him by pointing to some equally vile statement made by someone else. I would condemn that too, as should every decent person. And please don't defend what he has said by claiming that he has a constitutional right to say these things. I agree.

It's still wrong.

Wilson Huhn teaches Constitutional Law at The University of Akron School of Law.

Two days ago I summarized the issues in this case.  Yesterday's post described the Solicitor General's presentation to the Supreme Court in oral argument.  Today I describe the television broadcasters' arguments to the Court, through their attorneys Carter G. Phillips and Seth P. Waxman.  The transcript of oral argument is available here.

Attorney Phillips attempted to argue that the "indecency" regulations were recently adopted and that therefore they do not constitute a longstanding understanding between the nation and the nation's broadcast media.  Chief Justice Roberts immediately interrupted Phillips, insisting that broadcasts were becoming more indecent:

CHIEF JUSTICE ROBERTS: Well, that's because broadcasts didn't commonly have this sort of — these sorts of words or these sorts of images.

MR. PHILLIPS: Well, maybe, maybe not. We don't know. All we know is that for a period of

50 years, nothing happened. So, the idea –

CHIEF JUSTICE ROBERTS: Well, no, we know.

JUSTICE SCALIA: Yes, that's right.

CHIEF JUSTICE ROBERTS: I mean, we can — it was not the case from 1927 till whenever you — what, 1970-something — that nudity commonly appeared on broadcast television or the various words we're dealing with here commonly appeared. So, it seems a bit much to say, well, they didn't bring any cases for that period.  There were no cases to be brought.

Justice Kagan then brought up the government's strongest argument for continuing to subject broadcast television programmers to standards of decency that are not required of cable programmers – the "safe haven" justification – that viewers should have some television channels where they can be sure they will not be exposed to indecency:

JUSTICE KAGAN:  It seems to work and it — it seems to be a good thing that there is some safe haven, even if the old technological bases for that safe haven don't exist anymore [Huhn - because on cable there is no longer a problem of "frequency interference."].  So, why not just keep it as it is?

MR. PHILLIPS:  As we sit here today, literally facing thousands and thousands of ginned-up computer-generated complaints that are holding up literally hundreds of TV license renewals, so that the whole system has come to a screeching halt because of the difficulty of trying to resolve these issues.  So, to say that the system is working well, it seems to me, at least from the broadcasters' perspective, is to say — is to suggest that's just not true.

In response to a question from Justice Alito, Phillips indicated that his clients were only asking that the indecency standards be lifted for television broadcasts, not for radio.

Chief Justice Roberts returned to the subject of the "safe haven," stating that "there are 800 channels" where people can go for indecency, but only a few that the law subjected to decency standards.  Phillips responded that under the Constitution one speaker – one medium of communication – could not be treated differently than another.  Roberts said that if that's true "its not a legitimate objective to have a safe harbor."  Phillips noted that "there are on of cable networks that are aimed exclusively at children" and that "there are five, six, eight stations that, I guarantee you, you will see — where you'll see none of that [indecent] language."  Phillips also suggested that the United States could create a broadcast channel or network that would observe standards of decency.  In other words, Phillips was arguing that decency standards were not "necessary and that there were "less restrictive alternatives" to those kinds of laws.

Justice Alito asked what kind of programming viewers could expect to see on Fox if the decency standards were overturned.  Mr. Phillips responded that their advertisers and audiences would "insist on some measure of restraint."  Obviously doubtful of this response, Justice Breyer and Justice Alito asked Phillips that if Fox did not intend to broadcast indecency why it would even bother to challenge the decency standard.  At a later point Justice Kagan pointed out that she could detect a difference between the kinds of programs shown on basic cable and those shown on other channels, and other justices chimed in in agreement.

Attorney Seth Waxman began his argument for ABC by arguing that the FCC had been inconsistent in its application of its indecency standards by allowing the showing of Private Ryan but not the "Nude Awakening" episode of NYPD Blue.  Justice Breyer expressed his skepticism about whether it was so unreasonable to treat those programs differently, and asked Waxman why ABC didn't simply show the NYPD episode an hour later after 10:00 p.m., as the FCC would have allowed.

Waxman then made a tactical mistake:

MR. WAXMAN: I challenge the commission to identify a single decision of the commission issued before this was broadcast in 2003 ins which it had sanctioned [ed. - as in "punished] any display of nudity, and I'm going all the way back to 1978.

JUSTICE SCALIA: How many displays of nudity were there that went unsanctioned?

MR. WAXMAN: Well, for — I don't — I can't tell you, but I can tell you based on –

JUSTICE SCALIA:  Yes, well, I mean, if there are very few, it's not a very powerful argument.

Justice Breyer eventually observed that he had found a total of 17 incidents of nudity on broadcast television previous to this that had not been punished.  Chief Justice Roberts then stated: "That's what you've got over 85 years."

Waxman then moved the the most memorable part of this oral argument, when he pointed out to the Court the statutes in the courtroom with bare breasts and buttocks:

MR. WAXMAN: "Right over here, Justice Scalia.  (Laughter.)  Well, there's a bare buttock there, and there's a bare buttock here.  And there may be more that I hadn't seen.  But, frankly, I had never focused on it before.  But the point –

JUSTICE SCALIA:  Me neither.  (Laughter.)

Waxman contended that the FCC indecency rule was unconstitutionally vague, but he declined the invitation of the justices to propose an indecency standard that would be constitutional.  Instead, he listed four actions that the FCC might take:

1.  Revert to the "emphatically narrow enforcement regime" that it had followed before 2004;

2.  Convert the "multi-factor test" in which elements are identified into a more specific standard indicating how those factors should be balanced:

3.  Apply the factors consistently in a number of cases;

4.  Use more specific language in its decency guidelines.

Solicitor General Donald Verrilli returned to the podium in rebuttal, noting that in the 1980s shock jocks like Howard Stern and Bubba the Love Sponge were sponsored by advertisers, and that they had sparked a "race to the bottom."

Justice Kagan turned Verrilli's attention to the problem of vagueness and selective enforcement of the indecency standards:

JUSTICE KAGAN:  It's like nobody can use dirty words or nudity except for Steven Spielberg — (Laughter.)

Verrilli returned to the point he made at the beginning of oral argument that the incidents of indecency were extremely rare, and that therefore the problem of vagueness, though real, was not significant.  Delayed bleeping technology could be used for live programming to deal with recurring problems such as "fleeting expletives" on awards shows or "wardrobe malfunctions" at halftime.  Justice Scalia helpfully added, "Maybe … you shouldn't interview these people."

Chief Justice Roberts announced, "The case is submitted."

My impression is that the Solicitor General won this argument.  The justices were far more skeptical of his opponents than they were of him, and they seem poised to reaffirm Pacifica under the new rationale that regulation of indecency on broadcast television preserves a "safe haven" for parents and viewers.

Wilson Huhn teaches Constitutional Law at The University of Akron School of Law.

Over the course of three days conservative commentator Rush Limbaugh repeatedly defamed Sandra Fluke, a third-year Georgetown law student, calling her a "slut" and a "prostitute."  If found guilty of slander or intentional infliction of emotional distress (IIED), Limbaugh would be liable to Ms. Fluke for millions of dollars in actual damages, and his potential liability for punitive damages would be astronomical.  Is Limbaugh liable to Fluke for defamation and IIED, or is he protected by the First Amendment?  Limbaugh's only defense would be to compare himself to pornographer Larry Flynt and the homophobic Westboro Baptist Church.

An article by the UK Daily Mail Online describes how this controversy arose.  The House Oversight Committee under the leadership of Rep. Darrell Issa called five male witnesses to testify about how the President's order requiring health insurance companies to cover contraception violates the religious liberty of employers.  Democrats were told that they could call one witness, and they chose to call Ms. Fluke.  The Committee refused to permit Ms. Fluke to testify on the ground that she was not an expert on religious liberty.  According to the Mail,

Ms Fluke later posted her testimony on YouTube. She spoke about a friend who had to take birth control to treat a disorder that caused ovarian cysts, and who subsequently lost her ovary, and of classmates who could not afford contraception.

Phillip Elliott of the Associated Press reports Mr. Limbaugh's response to Ms. Fluke's proffered testimony.  Limbaugh stated:

"What does it say about the college co-ed … who goes before a congressional committee and essentially says that she must be paid to have sex? It makes her a slut, right? It makes her a prostitute. She wants to be paid to have sex."

The following day Limbaugh said:

"If we're going to have to pay for this, then we want something in return, Ms. Fluke," Limbaugh said. "And that would be the videos of all this sex posted online so we can see what we're getting for our money."

After many Democrats and a few Republicans responded with outrage to Limbaugh's remarks and several advertisers deserted Mr. Limbaugh's program, he issued the following apology posted on his website:

For over 20 years, I have illustrated the absurd with absurdity, three hours a day, five days a week. In this instance, I chose the wrong words in my analogy of the situation. I did not mean a personal attack on Ms. Fluke.

I think it is absolutely absurd that during these very serious political times, we are discussing personal sexual recreational activities before members of Congress. I personally do not agree that American citizens should pay for these social activities. What happened to personal responsibility and accountability? Where do we draw the line? If this is accepted as the norm, what will follow? Will we be debating if taxpayers should pay for new sneakers for all students that are interested in running to keep fit? In my monologue, I posited that it is not our business whatsoever to know what is going on in anyone's bedroom nor do I think it is a topic that should reach a Presidential level.

My choice of words was not the best, and in the attempt to be humorous, I created a national stir. I sincerely apologize to Ms. Fluke for the insulting word choices.

There are several issues that must be considered in deciding whether an action for defamation or intentional infliction of emotional distress would lie against Mr. Limbaugh for his three-day diatribe against Ms. Fluke.  Did Limbaugh make statements of fact about Ms. Fluke or did he engage in hyperbole or parody?  If these were statements of fact that were not parody, were they false?  Were these statements made about Ms. Fluke personally or were they instead directed at other people or society generally?  What was Mr. Limbaugh's state of mind:  did he know that his remarks were untrue; did he utter them with careless disregard as their truth or falsity; or was he simply negligent in misstating the truth?  For purposes of this controversy, is Ms. Fluke a private figure or a public figure?  And were these statements about a matter of public concern or did they simply involve Ms. Fluke's private life?  Three of these factors are discussed below.

STATEMENT OF FACT OR PARODY?

No action for defamation may be brought unless it involves a statement that is "falsifiable;" it must be possible to prove that the statement is true or untrue.  Moreover, even a statement of fact is capable of being proven false, no action for defamation lies on behalf of a public figure if the statement may fairly be construed as "parody" not intended to be taken literally.

I think that it is clear that Mr. Limbaugh made statements of fact about Ms. Fluke that could be proven true or false. He specifically referred to her as a "slut" and a "prostitute," terms that have specific, well-known meanings. In fact, these terms are poster boys for words that would trigger "libel per se," the common law doctrine that allowed people to recover damages for defamation almost automatically.  Because of the Supreme Court's interpretation of the First Amendment, however, the doctrine of "libel per se" no longer applies in these types of situations, so it is necessary to continue the analysis.

Even though Limbaugh's remarks were falsifiable statements of fact, Limbaugh would contend that they were "parody;" that no-one could have seriously believed that he was accusing Ms. Fluke of promiscuity.  He would invoke the case of Hustler Magazine v. Falwell (1988), in which the Supreme Court in an opinion by Chief Justice Rehnquist ruled that the pornographer Larry Flynt could not be held liable for a fake advertisement that he published depicting Jerry Falwell admitting to having had sex with his mother in an outhouse.  The Court stated:

We conclude that public figures and public officials may not recover for the tort of intentional infliction of emotional distress by reason of publications such as the one here at issue without showing in addition that the publication contains a false statement of fact which was made with "actual malice," i. e., with knowledge that the statement was false or with reckless disregard as to whether or not it was true. …

Here it is clear that respondent Falwell is a "public figure" for purposes of First Amendment law. The jury found against respondent on his libel claim when it decided that the Hustler ad parody could not "reasonably be understood as describing actual facts about [respondent] or actual events in which [he] participated."  The Court of Appeals interpreted the jury's finding to be that the ad parody "was not reasonably believable," and in accordance with our custom we accept this finding. Respondent is thus relegated to his claim for damages awarded by the jury for the intentional infliction of emotional distress by "outrageous" conduct. But for reasons heretofore stated this claim cannot, consistently with the First Amendment, form a basis for the award of damages when the conduct in question is the publication of a caricature such as the ad parody involved here.

When Mr. Limbaugh finally came to his senses and delivered what he considered be an apology to Ms. Fluke he characterized his statements as "absurdity" and "an attempt at humor."  In referring thus to his remarks he would appear to be raising the Hustler defense to both a cause of action for defamation and a lawsuit for intentional infliction of emotional distress.  The obvious difficulty with the Hustler defense in this instance is that while it was clear that Rev. Jerry Falwell was a public figure, it is not at all clear that Ms. Fluke is.  The "public figure/private figure" dichotomy is discussed below, but first I address whether this involved a matter of public concern or a matter of private concern.

PUBLIC CONCERN OR PRIVATE CONCERN?

In a lawsuit for defamation or IIED Limbaugh would defend on the ground that, like the Westboro Baptist Church, he was discussing a matter of public concern.  In the case of Snyder v. Phelps (2011), decided a year ago this month, the Supreme Court ruled that the Westboro Baptist Church was not liable to the Snyder family despite the fact that the church mounted a demonstration during their son's funeral.  The members of the church claimed that Marine Lance Corporal Matthew Snyder, who had been killed in Iraq in the line of duty, had actually died because God was punishing America for tolerating homosexuality.  They also were demonstrating against the Roman Catholic Church, to which the Snyders belong.

The Snyders were undeniably private figures, and yet the Supreme Court found the Westboro Baptist Church to be immune from liability because their statements were not directed personally at the Snyders and because their statements involved "matters of public concern."  Chief Justice John Roberts delivered the opinion for the majority.  Here is the key passage of his opinion:

The "content" of Westboro's signs plainly relates to broad issues of interest to society at large, rather than matters of "purely private concern." The placards read "God Hates the USA/Thank God for 9/11," "America is Doomed," "Don't Pray for the USA," "Thank God for IEDs," "Fag Troops," "Semper Fi Fags," "God Hates Fags," "Maryland Taliban," "Fags Doom Nations," "Not Blessed Just Cursed," "Thank God for Dead Soldiers," "Pope in Hell," "Priests Rape Boys," "You're Going to Hell," and "God Hates You." While these messages may fall short of refined social or political commentary, the issues they highlight â�� the political and moral conduct of the United States and its citizens, the fate of our Nation, homosexuality in the military, and scandals involving the Catholic clergy â�� are matters of public import. The signs certainly convey Westboro's position on those issues, in a manner designed, unlike the private speech in Dun & Bradstreet, to reach as broad a public audience as possible. And even if a few of the signs–such as "You're Going to Hell" and "God Hates You"–were viewed as containing messages related to Matthew Snyder or the Snyders specifically, that would not change the fact that the overall thrust and dominant theme of Westboro's demonstration spoke to broader public issues.

Limbaugh's statements are every bit as vile as that of the Westboro Baptist Church.  He would, however, contend that "the overall thrust and dominant theme" of his remarks on this subject "spoke to broader public issues."  In this he would hope to be protected from liability for IIED to Ms. Fluke under the rule of Snyder v. Phelps.  One problem he would face in asserting this defense is that his comments were not responsive to Ms. Fluke's point that women face serious health consequences when contraception services are not made freely available.  Another difficulty Mr. Limbaugh would have is that his comments were directed far more specifically at Ms. Fluke personally than were the remarks of the Westboro church at the Snyder family.

PUBLIC FIGURE OR PRIVATE FIGURE?

Is Ms. Fluke a public figure or a private figure?  This could be argued either way.  Militating against finding Fluke to be a public figure is the fact that she does not hold public office nor does she exercise public power.  Prior to this controversy she was unknown to the public.  In support of finding that she is a public figure for purposes of this controversy is the fact that she was chosen to testify before the House Oversight Committee on the subject of the medical necessity for ready access to  access to contraception.

The leading case on this subject is Gertz v. Robert Welch, Inc. (1974).  In that case the John Birch Society defamed a Chicago attorney, Elmer Gertz, by calling Gertz a "Communist-fronter" and accusing him of being part of a conspiracy because he represented a family suing a Chicago policeman for murder. The key finding of the Supreme Court was that attorney Gertz was not a public figure.  Speaking for the Court, Justice Powell stated:

In this context it is plain that petitioner was not a public figure. He played a minimal role at the coroner's inquest, and his participation related solely to his representation of a private client. He took no part in the criminal prosecution of Officer Nuccio. Moreover, he never discussed either the criminal or civil litigation with the press and was never quoted as having done so. He plainly did not thrust himself into the vortex of this public issue, nor did he engage the public's attention in an attempt to influence its outcome. We are persuaded that the trial court did not err in refusing to characterize petitioner as a public figure for the purpose of this litigation.

Unlike Gertz, Ms. Fluke publicly expressed her opinion about access to birth control.  Neither, however, was she acting as an attorney in significant litigation.  Whether she is or is not a "public figure" within the meaning of the law of defamation is not clear.

If Ms. Fluke is a public figure then the standards of New York Times v. Sullivan (1964) would apply, and in order to recover for defamation she would have to prove by clear and convincing evidence that Mr. Limbaugh knew that the statements were false or that he acted with reckless disregard as to their truth or falsity.  Furthermore, she would be ineligible to recover punitive damages.

If on the other hand Ms. Fluke were found to be a private figure then this case would be governed by Gertz v. Welch and in order to recover for defamation she would only have to prove by a preponderance of the evidence that Limbaugh was negligent in making inaccurate statements about her.  Furthermore, she could recover punitive damages if she could prove that Limbaugh knew that the statements were false or that he uttered them without caring whether they were true or false.  Those punitive damages might amount to tens of millions of dollars.

CONCLUSION

If it were determined that Mr. Limbaugh made false statements of fact about Ms. Fluke that the average reasonable person would not know was parody, it would open the door to a suit for defamation.  If it were also determined that Ms. Fluke were a private figure she might also be able to sue for intentional infliction of emotional distress.  If in addition to those two findings it were determined that Mr. Limbaugh's statements  relate to a matter of private concern rather than a matter of public concern then it is almost certain that Mr. Limbaugh would be held liable to Ms. Fluke.

On the one hand, it is clear that Mr. Limbaugh's statements were made in the larger context of the dispute over public funding for preventive care for women's health.  On the other hand, instead of addressing those issues he chose instead to launch a personal attack on Ms. Fluke, and Mr. Limbaugh has a long history of vilifying individuals with whom he disagrees.

That is the weak point of Limbaugh's defense.  He never discusses policy.  He has no demonstrable expertise in science, economics, or public health.  On his program he does not interview leading figures in American life or rationally discuss the ramifications of suggested laws and public policies.  Instead, he engages in the politics of personal destruction, of which his outrageous treatment of Ms. Fluke is but one example.  He seeks not to engage people with whom he disagrees but simply to intimidate them.  In this case he thought he could make Ms. Fluke and other women cower with his bullying and his lies.  He thought that he could silence the opposition by shaming them with assertions of sexual immorality.  In this he is nearly identical to Larry Flynt and the Westboro Baptist Church.  But because his statements contained more plausible and specific factual assertions about Ms. Fluke and because Ms. Fluke might be a private figure it is not altogether clear that he would be able to claim the same legal protections that applied to Flynt and the Westboro group.

There will be no lawsuit.  The President of the United States responded to Mr. Limbaugh's demagoguery by calling Ms. Fluke and telling her that her parents should be proud of her.  I imagine that is sufficient compensation for the ordeal that Mr. Limbaugh put her through.

I am also confident that this issue will arise again.  Mr. Limbaugh will continue to engage in his detestable brand of "humor."  It is all he knows.

In a future post I will conduct a broader analysis of Mr. Limbaugh's political philosophy.

Wilson Huhn teaches Constitutional Law at The University of Akron School of Law.  He is the author of "The Five Types of Legal Arguments" and "ObamaCare: Is It Necessary, What Will It Accomplish, Is It Constitutional."

I described the First Amendment issues that are at stake in this case in yesterday's post. Today's post summarizes what occurred during the government's presentation at oral argument in FCC v. Fox on January 10, 2012. The transcript of oral argument is available here.

Solicitor General Donald B. Verrilli argued this case on behalf of the FCC.  Attorneys Carter G. Phillips and Seth P. Waxman represented the Fox and ABC television networks respectively.  This post describes Verrilli's presentation.

General Verrilli commenced his argument by noting that when the government grants a broadcaster the right to exclusive use of a television broadcast frequency, the broadcaster must accept the fact that there will be conditions attached to that grant.  One such condition that Congress and the agency might impose, argued Verrilli, is "that they refrain from broadcasting indecent material when children are most likely to be in the audience."

Verrilli had no sooner made this point when Justice Kagan challenged him by asking how far the F.C.C. could go in regulating broadcasters:

But, General Verrilli, it seems to me that this contract notion of yours can only go so far. I mean, if the idea is just we gave them something, now they have to do whatever we say, you wouldn't accept that. So, the question is why is this condition appropriate when many other conditions would not be appropriate?

Verrilli responded that the F.C.C.'s indecency rule was appropriate because it was customary – the FCC had regulated broadcasters for indecency since the 1920s when the Radio Act was adopted.  Verrilli reminded the Court that even though television stations were mainly carried on cable, radio was still broadcast over the airwaves, and that "a lot of the most vile and lewd material really is in radio."  This was, in effect, a mitigation argument: whatever the Court decided to do about indecency on television, Verrilli wanted to ensure that the decency regulations should remain in full force as to radio.

Verrilli conceded that most television reception is through cable rather than over air, but he argued that "broadcast" television is even more pervasive now than it was when it was broadcast through the airwaves – that it enters more homes and is more accessible to children and unwilling listeners.  He characterized the broadcasters' argument as "very different" from the normal reason for overturning precedent, in the sense that Fox and ABC were contending that it made no sense to continue to regulate indecency on the broadcast channels since there were so many cable channels that could show whatever indecent material they chose at any time of the day.  [Huhn - I can't help comparing the broadcasters' argument to a teenager's lamentable appeal to fairness, "All the other kids get to ...."]  Verrilli says that this amounts to a claim that indecency regulations are now "futile."  Verrilli says that regulation of the broadcast channels is not futile because it provides a "safe haven" of decent programming for families on cable.

Justice Ginsburg turned Verrilli's attention to the principal problem with the decency regulations: the fact that  they are so hard to apply in a consistent manner.  Why, she asked, was this brief scene of nudity prohibited during daytime hours, while broadcasts of "Private Ran and "Schindler's List" were permitted?  It gives "the appearance of arbitrariness," she said.  Verrilli essentially admitted that there were difficult cases, but claimed that they were few in number – that only a vanishingly small proportion of scenes or episodes on television presented a hard case or fell into a gray area of enforcement.  Verrilli added that the only way to avoid problems of vagueness would be to draw bright lines outlawing the speaking of certain words or the showing of certain body parts no matter the context.  He defended the use of a guidelines on indecency that were "contextual" as better policy and as more consistent with existing precedent like Pacifica.  [Huhn - in its 2009 ruling in FCC v. Fox the Supreme Court noted with approval that Pacifica endorsed a context-based approach.]

Justice Kagan and Justice Ginsburg continued to press Verrilli on the issue of vagueness.  He responded that even though there were difficult cases scenes of nudity were "exceedingly, exceedingly rare" on broadcast television because of the indecency regulations.

Asked about whether there was a less restrictive alternative to decency regulations, General Verrilli was dismissive of V-chip technology:  "It's been around for more than a decade … It hasn't taken."

Justice Kennedy asked whether there was, at this point, a meaningful difference between "broadcast" and "cable" television channels, in light of the fact that they are all delivered to people's homes via cable.  Justices Kagan and Alito echoed this concern.  General Verrilli pointed out that federal law requires cable operators to carry the broadcast stations and to give them a preferred channel position, and that this distinguished broadcast stations from cable programmers.

Justice Scalia, as has become his custom, did not ask a question but simply expressed his opinion that the government could require broadcasters to observe "a certain modicum of decency," just as it could require "a certain modicum of dress for the people that attend this Court."

Members of the Court then began to observe that standards of decency were changing, and Verrilli agreed but noted that the question was whether broadcast television should be permitted to present nudity and bad language as appropriate.

Tomorrow's post will continue with the description of oral argument in FCC v. Fox.

The last time this case came before the Supreme Court in 2009 it was for â��fleeting expletivesâ�� uttered by Cher at the 2002 Billboard Music Awards broadcast by Fox and by Nicole Richie and Paris Hilton at the same event in 2003.  The Supreme Court decided that case not on constitutional grounds but rather under principles of administrative law.  This time the case comes before the Court because of a scene of nudity – a boy watching a woman entering the bath naked – and the constitutional issues are squarely before the Court.  ABC showed this scene on a program at 9:00 in the evening instead of waiting one more hour when it would have been allowed under F.C.C. guidelines.

An F.C.C. regulation prohibits a radio or television broadcast station from broadcasting "any material which is indecent" between the hours of 6:00 a.m. and 10:00 p.m.  On February 5, 2003, the ABC Television Network broadcast an episode of NYPD Blue entitled "Nude Awakening" at 9:00 in the evening – prime time, when it may charge more for advertising.  The title of the episode is a reference to the "sexual awakening" of a young boy who sees an adult woman living in his home enter a shower naked.  The scene lasted seven seconds.  Had the network chosen to broadcast the episode an hour later it would have been permitted.  As it was, the F.C.C. fined the 44  network affiliates that carried the episode the maximum penalty of $27,500 apiece, a total of $1.2 million.  The Second Circuit Court of Appeals reversed the agency's decision on the ground that the FCC guidelines are unconstitutionally vague.  The FCC appeals from this decision, contending that the guidelines are not vague and that the broadcaster did not have the right under the First Amendment to broadcast this scene at this time of the day.

The FCC guidelines defining "indecency" were revised in 2001.  The guidelines currently provide that a broadcaster is not permitted to �describe or depict sexual or excretory organs or activities� in a manner that is �patently offensive as measured by contemporary community standards.�  A broadcast will be considered to be �patently offensive� based on three factors:  (1) �the explicitness or graphic nature of the description or depiction�; (2) �whether the material dwells on or repeats at length� the description or depiction; and (3) �whether the material appears to pander or is used to titillate, or whether the material appears to have been presented for its shock value.�

The principal case governing this subject is F.C.C. v. Pacifica Foundation, 438 U.S. 726 (1978), in which the Court upheld the power of the F.C.C. to prohibit a radio station from broadcasting George Carlin�s �Seven Dirty Words� monologue during daytime hours.  The Court articulated two principal reasons in support of its ruling.  First, broadcast frequencies are a scarce resource that are of necessity licensed by the government to broadcasters for their exclusive use, and that therefore the government is justified in regulating that use in the public interest.  Second, radio and television broadcast signals are pervasive and intrusive; the signals are broadcast into our homes and automobiles, and it is therefore appropriate to protect children and other unwilling listeners from exposure to indecent programming.  Accordingly, ruled the Court, the F.C.C. could constitutionally prohibit "indecent" broadcasts during daytime hours.

One of the problems in this case is that the communications industry has undergone a tremendous shift in the three decades since Pacifica was decided.  Today only 10% of American households receive television signals over the air; most of the rest receive television signals via cable.  Furthermore, government regulations confer significant advantages on the television broadcast media to keep them in business.  Federal law provides that cable operators �must carry� broadcast television programmers and give them preferred positions in the assignment of cable channels.

The broadcaster contends that the scarcity of television broadcast frequencies is no longer an important factor and should not warrant government regulation of content.  The F.C.C. responds that radio is still pervasive and intrusive and that it is important to preserve the broadcast channels on cable as an island of decency during the daytime on cable television.

Tomorrow: a summary of oral argument in this case.

Wilson Huhn teaches Constitutional Law at The University of Akron School of Law.

Mr. Howards' son continued on to the recital; Mr. Howards remained behind to visit with the Vice President. As Mr. Howards waited for his turn, he observed the Vice President interacting with the gathering crowd, greeting patrons, shaking hands, and posing for photographs with onlookers. He then approached the Vice President and informed him that his �policies in Iraq are disgusting.� Id. at 491. The Vice President responded, �Thank you.� Id. As he departed, Mr. Howards touched the Vice President's right shoulder with his open hand.^FN2 Although Agents Daniels, McLaughlin, and Doyle continued to monitor Mr. Howards and witnessed the touch, none of them were close enough to hear Mr. Howards' statements to the Vice President. Neither Agent Daniels nor Agent McLaughlin believed Mr. Howards' touch of the Vice President provided probable cause for arrest. See id. at 418, 428.

[Fn. 2] The manner in which Mr. Howards touched the Vice President is disputed by the parties. Mr. Howards described the touch as an open-handed pat on the shoulder. Others, however, including the Agents, have described the touch as �push[ing] off� the Vice President's shoulder, Aplt. App. at 390, �a get-your-attention-type touch,� id. at 395, a �slap,� id. at 418, �a forceful touch,� id. at 432, and a strike that caused �the Vice President's shoulder [to] dip[ ],� id. at 435. Because our review requires us to consider the evidence in the light most favorable to Mr. Howards, we will assume, without deciding, that his characterization is accurate.

Special Agent Mike Lee, who was standing near the Vice President and in charge of the protective detail, overheard the verbal exchange. As Mr. Howards walked away, Special Agent Andrew Wurst, who was approximately fifteen yards from the Vice President when the touch occurred, approached Agent Lee. Agents Lee and Wurst agreed that a protective intelligence team should be sent to speak with Mr. Howards. Agent Wurst then asked Special Agent Oscar Rosales to send the protective intelligence team to speak with Mr. Howards. After Agents Wurst and Rosales separated, Agent McLaughlin approached Agent Rosales to inquire whether a protective intelligence team was going to interview Mr. Howards.

Thereafter, Agent Gus Reichle, the intelligence coordinator, was dispatched to interview Mr. Howards as a person of interest in �an incident involving Vice President Cheney.� Id. at 369. Although Agent Reichle had neither overheard the cell phone statement nor observed the actual interaction between Mr. Howards and the Vice President, Agent Doyle debriefed him as he approached Mr. Howards. Agent Doyle identified Mr. Howards as the person of interest and provided �a quick thumbnail sketch that he had overheard the subject on a cellular telephone whom [sic] stated, �I'm going to ask him how many kids he's killed today.� � Id. at 371. Agent Reichle assumed that Mr. Howards' reference was to Vice President Cheney. Id.

Mr. Howards then left the vicinity and proceeded to join his family at the recital hall. Upon his arrival, Mr. Howards' wife asked him to accompany his younger son back to their condo. Mr. Howards and his son left the recital hall and began to walk towards the mall exit. On their way out, Mr. Howards and his son again entered the area where the Vice President was conducting his meet and greet. Before they reached the mall exit, his son wandered off, and Mr. Howards began to look for him.

During the search for his son, Mr. Howards was approached by Agent Reichle, who was dressed in civilian clothes. Special Agents Daniels, Doyle, and McLaughlin remained nearby in a counter-surveillance role. Agent Reichle presented his Secret Service badge, identified himself, and requested to speak with Mr. Howards. Mr. Howards refused to speak with the agent and attempted to resume the search for his son. Agent Reichle stepped in front of Mr. Howards to prevent his departure and asked Mr. Howards if he had assaulted the Vice President. Mr. Howards pointed his finger at Agent Reichle, denied assaulting the Vice President, and informed the agent that �if you don't want other people sharing their opinions, you should have him [the Vice President] avoid public places.� Id. at 494. Agent Reichle became �visibly angry� when Mr. Howards shared his opinion on the Iraq war. Mr. Howards again attempted to resume his search for his son.

In his deposition, Mr. Howards articulated the events that followed:

A. At some point [Agent Reichle] said to me�I believe there actually�he also asked me if I touched the Vice President.

Q. How did you respond to that?

A. I believe I said I hadn't.

Q. Okay. And that wasn't truthful, was it?

A. That wasn't accurate.

Q. Do you recall him asking you any additional questions?

A. No. That's what I recall.

Id. at 495. Agent Reichle asked the nearby agents whether anyone had witnessed the physical encounter between Mr. Howards and the Vice President. Agent Doyle stepped forward and confirmed that he had witnessed the physical contact, and he performed a demonstration of the touch. Agents Daniels and McLaughlin confirmed that Agent Doyle's demonstration was an accurate recreation of the exchange.^FN3

[Fn. 3] Just as the parties dispute the nature of Mr. Howards' touch, there is disagreement as to whether Agent Doyle's recreation of the touch was accurate. This dispute is not relevant to our disposition of the appeal.

Yesterday's post described the government's presentation at oral argument in United States v. Alvarez, where the Solicitor General defended the constitutionality of the Stolen Valor Act.  Today's post summarizes the respondent's argument.  Here is a link to the transcript of the oral argument.

Jonathan D. Libby argued on behalf of the defendant Alvarez, who was convicted of violating the Stolen Valor Act because he had falsely claimed to have won the Congressional Medal of Honor.  Libby began vigorously:

The Stolen Valor Act criminalizes pure speech in the form of bare falsity, a mere telling of a lie.

Chief Justice Roberts asked whether there is any First Amendment value in a lie, and Libby responded that there are two reasons we allow people to lie: "personal autonomy" and "the fact that people tell lies allows us to appreciate the truth better."  Justice Alito pressed Libby on this point:

JUSTICE ALITO: Do you really think that there is — that the First Amendment — that there is First Amendment value in a bald-faced lie about a purely factual statement that a person makes about himself, because that person would like to create a particular persona? Gee, I won the Medal of Honor. I was a Rhodes scholar, I won the Nobel Prize. There's a personal -the First Amendment protects that?

MR. LIBBY: Yes, Your Honor, so long as it doesn't cause imminent harm to another person or imminent harm to a government function.

Justice Breyer then entered the conversation in support of the constitutional value of lying, generating a colloquy with Chief Justice Roberts:

JUSTICE BREYER: Obvious example. Are there Jews hiding in the cellar? No.  …

CHIEF JUSTICE ROBERTS: That's not a statement about one's self.

JUSTICE BREYER: Are you [italics mine] hiding Jews in the cellar?

CHIEF JUSTICE ROBERTS: Excuse me. Sorry. (Laughter.)

Justice Scalia drew an analogy between the Stolen Valor Act and laws that prohibit lying to a federal agent in the course of an investigation.  Libby, course, distinguished that law on the ground that the harm of impeding an investigation is different from the harm that may result from lying about having earned a military medal or decoration.  Scalia then asked whether the Court should defer to Congress in deciding whether the speech would result in harm.  At this point my response to Justice Scalia would have been "Well, you didn't defer to Congress when it passed a law prohibiting the sale of recordings of cruelty to animals, did you?" but then I tend to forget to be polite when I get worked up.  Attorney Libby started to answer but was interrupted by Justice Kennedy, who asked Libby a "slippery slope" question:

JUSTICE KENNEDY: Let me ask you this: What do you do with the statute that prohibits the wearing of a medal that has not been earned?

Libby responded with the obvious answer, that wearing medals is conduct not speech, but Kennedy gave the equally obvious response, that wearing medals may be "expressive conduct" like wearing an armband or flying a flag, and receives just as much constitutional protection as speech does.  This is a difficult point for Libby because most people would consider it to be a crime to wear a military medal or decoration that has not been earned.  In the end, Libby had to admit that under his reasoning the law prohibiting the wearing of unearned medals might be unconstitutional as well.

Justice Kagan then asked Libby whether this law chills any truthful speech.  Libby appeared to concede that  the law did not have any "chilling effect" on truthful statements.  Kagan responded, "that's a big concession."   Libby then based his entire case upon the proposition that as a general rule, "false statements" are protected by the constitution unless they fall into a category such as fraud, perjury, lying to an investigator, etc.:

All speech is presumptively protected unless we go back and it fits into one of the historical categories of speech that this Court has found historically is unprotected.

Justice Sotomayor asked Libby to distinguish the Stolen Valor Act from laws punishing the intentional infliction of emotional distress.  Libby said that he was outraged when people falsely claim to have military honors, but that this was not the same as intentionally harming individuals:

Certainly people are entitled to be upset by these false claims. I mean, I'm personally upset by these false claims. But the fact that there is a certain level of upset doesn't mean that you're harmed in the sense of, of the intentional infliction of emotional stress tort, and so what we're dealing with here is simply a non-instantaneous harm.

He added later that IIED claims involve speech that is targeted at individuals and that cause immediate harm.

Mr. Libby made good use of questions asked by the justices to make the point that the Stolen Valor Act goes too far in punishing speech – that there were other means that the government could use to discourage this kind of conduct.  In response to a question from Justice Scalia, Mr. Libby suggested that the government could publicize the fact that a person had lied about having earned military honors.  And in response to a question from Justice Ginsburg, Libby stated that the law could punish people who lie about military honors to obtain something of value.  Justice Kennedy objected that Mr. Libby was arguing that the government could punish this behavior if it causes financial loss but not because of the outrage to our troops.  Justice Scalia picked up on this point:

JUSTICE SCALIA: So a thing of value, it has to be something of commercial value, right? Just to obtain praise and the higher esteem of your fellow citizens, that's — that's not enough.

MR. LIBBY: Well, Your Honor …

JUSTICE SCALIA: You have to get a penny out of it, right?

Libby responded that it could be "anything of a non de minimus value."  Roberts asked whether the desire to gain political office would constitute something of value.  It is, of course – but I think the answer is that  would raise the specter of  the government regulating what people say during political campaigns.

Justice Alito asked whether people could be prosecuted for lying while dating:

JUSTICE ALITO: Suppose what the person gets is — is a date with a potential rich spouse. Would that be enough?

MR. LIBBY: Your Honor, I think when it comes — when you get into the situation where you're getting something like a date, I do not know that — I certainly wouldn't consider that a non de minimis thing of value, but …

JUSTICE ALITO: Some people might have a different opinion.

(Laughter.)

Justice Kennedy's last question drew a distinction between the Stolen Valor Act and laws prohibiting impersonation.  Impersonation statutes contain an element requiring that the defendant performed "an overt act that asserts authority that the impersonator claims to have."  He asked Libby whether that requirement was enough so that the law did not punish pure speech.

Libby closed with two points: that our starting point under the First Amendment is that "we have the right to say pretty much what we want to say," and that under the Court's decision in Stevens speech is protected unless it falls into a "historically unprotected" category of speech.

Based upon their questions and comments during oral argument, it appears that a majority of the justices are leaning against the constitutionality of the Stolen Valor Act.  Their decision will be handed down before the end of June.

Wilson Huhn teaches Constitutional Law at The University of Akron School of Law.

The principal doctrinal division in this case is whether "false statements of fact" are a "historically unprotected category of speech.  The principal practical division arises from the attempt to identify the "harm" that the government is seeking to prevent by prohibiting people from lying about earning military honors.  Oral argument exposed those divisions.  Today I describe the first half of oral argument, the government's defense of the Stolen Valor Act.

If "false statements of fact" are a historically unprotected category of speech, then the government has broad power to punish any speech that falls within that category.  If as a general rule false statements are not historically unprotected, then strict scrutiny applies, and the government has the burden of proving that it has a compelling reason to punish people who falsely claim to have won a medal or earned other military honors, and that there is no other feasible way of accomplishing the same purpose.

Furthermore, whether or not strict scrutiny applies, the "harm" that the government is seeking to prevent matters.  If the government can point to some concrete harm that these false statements cause, that may provide a legitimate reason to punish the speech.  However, if the only harm that is caused by these lies is that other people are offended or outraged, that is not enough; that would make this a "viewpoint-based" law, which is automatically unconstitutional.

The divisions on the Court over these issues were apparent at oral argument.  Here is the link to the transcript of oral argument.  The first meaningful exchange was between Solicitor General Donald B. Verrilli and Justice Kennedy:

GENERAL VERRILLI: This Court has said in numerous contexts, numerous contexts, that the calculated factual falsehood has no First Amendment value for its own sake.

JUSTICE KENNEDY: Well, I'm — I'm not sure that that's quite correct. It has said it often, but always in context where it is well understood that speech can injure. Defamation, Gertz. At page 12 of your brief, you make this point, and it's what Justice Sotomayor is indicating. You think there's no value to falsity.

But I — I simply can't find that in our cases, and I — I think it's a sweeping proposition to say that there's no value to falsity. Falsity is a way in which we contrast what is false and what is true.

Solicitor General Verrilli then adopted a more modest position.  He argued that so long as a statute gives adequate "breathing space" to freedom of speech, that the law may punish false statements.  He contended that because this law is directed against "a very narrowly drawn and specific category of calculated factual falsehood," that it met this test – that the law does not unduly infringe on freedom of speech.  He wasn't conceding that strict scrutiny applied, but he was arguing that it was "narrowly tailored," which is the "means" test for intermediate heightened scrutiny.  He later added that this law serves a "substantial interest," which is the "ends" prong of intermediate scrutiny.  He never did explain why intermediate scrutiny would be the applicable standard of review.

Justice Ginsburg asked whether the law could be extended to cover people who lie about having served in the military (Mr. Alvarez falsely claimed to have been a Marine, as well as lying about receiving the Congressional Medal of Honor).  General Verrilli conceded that would be a more difficult case, but Justice Scalia interrupted to say that such a law would be just as constitutional because it was "falsehood conjoined with harm, just as libel is."  Scalia added:

So — and in the example that Justice Ginsburg just gave, in your case there's harm to those courageous men and women who receive the decorations. In the — in the example that Justice Ginsburg gave, there's harm to the people who honorably served in the armed forces.

Chief Justice Roberts sounded skeptical that the law could punish false statements about oneself:

Well, where do you stop? I mean, there are many things that people know about themselves that are objectively verifiable where Congress would have an interest in protecting. High school diploma. It is a crime to state that you have a high school diploma if you know that you don't.

Verrilli noted that some states do have laws that prohibit lying about having earned a degree, but Roberts responded "that's for submitting resumes … that's fraud."  Verrilli conceded "It is true that the harm here is different."

Kennedy reiterated that the Court had never held that "false statements of fact" in general are an unprotected category of speech, but then he suggested that the government might identify a different type of harm; a proprietary interest in military honors:

Here it does seem to me that you can argue that this is something like a — a trademark, a medal in which the government and the armed forces have a particular interest, and we could carve out a narrow exception for that. I think we would have to do that.

Later, Kennedy returned to this point and called the trademark analogy the government's strongest argument.  Sotomayor responded to this "trademark analogy" by noting that in other cases where this type of falsehood is punished it involves a pecuniary loss, a taking of a valuable property right.  She asked "What's the harm here that fits within that descriptor?"

Instead of answering the question, Verrilli offered more analogies.  He compared the Stolen Valor Act to federal laws such as "the impersonating a Federal officer statute, … the false statement statute [and] perjury statutes."  Sotomayor's response:

Not really. They are intended to protect the right of the government to secure truthful information.

Justice Alito then posed an interesting question.  He first pinned Verrilli dowm, and then skewered him:

JUSTICE ALITO: Is your argument limited to statements that a person makes about himself or herself?

GENERAL VERRILLI: Yes. It is. …

JUSTICE ALITO: What's the principal reason for drawing the line there? Suppose the statute also made it a crime to represent falsely that someone else was the recipient of a military medal, so that if someone said falsely and knowingly that a spouse or a parent or a child was a medal recipient, that would also be covered?

This would be the "grandfather rule" – what if someone falsely claims that his or her grandfather won the Medal of Honor?  Could that be made a crime?  General Verrilli started to concede that this law, too, would probably be unconstitutional, when Justice Scalia again intervened to defend the Stolen Valor Act:

JUSTICE SCALIA: I don't see any difference as far as that risk goes. I — I hope that in your earlier colloquy with Justice Kennedy, you — you were not retreating from what our cases have repeatedly said, that there is no First Amendment value in falsehood.

Justice Scalia was trying mightily to help, but he was doing so by asserting a general principle that is very difficult to maintain.  I ask you, do these pants make me look fat?  Be careful – under Justice Scalia's understanding of the First Amendment the polite answer to this question might land you in federal prison.  Of course, in my opinion you should be severely punished if you answered that question truthfully!

Justice Kagan asked about the constitutionality of state laws that make it a crime for a political candidate to misrepresent himself in seeking public office.  Once again Verrilli admitted that those laws might be unconstitutional because of the "chilling effect" on the political process.

Justice Scalia then asked what he thought was a helping question to distinguish "political puffing" from the conduct punished by the Stolen Valor Act:

I suppose that even in the commercial context we allow a decent amount of lying, don't we? It's called puffing. … So maybe we allow a certain amount of puffing in political speech as well.  … Nobody believes all that stuff, right?

Justice Sotomayor suggested that Congress could have narrowed this law by making it a crime to falsely claim to have earned military honors for profit.  In other words, Congress should have enacted this as a fraud statute.  The government would have to prove that someone lied in order to gain something of value.  And then Sotomayor went to the heart of the "harm" issue – that certain types of harms like offense, anger, or outrage do not count as constitutional harms – that the government may not punish speech merely because it does not like it.  She said:

What I'm trying to get to is, what harm are we protecting here? I thought that the core of the First Amendment was to protect even … offensive speech. We have a legion of cases that said your emotional reaction to offensive speech is not enough. If that is the core of our First Amendment, what I hear, and that's what I think the court below said, is you can't really believe that a war veteran thinks less of the medal that he or she receives because someone's claiming fraudulently that they got one. They don't think less of the medal. We're reacting to the fact that we're offended by the thought that someone's claiming an honor they didn't receive.  So outside of the emotional reaction, where's the harm? And I'm not minimizing it. I too take offense when people make these kinds of claims, but I take offense when someone I'm dating makes a claim that's not true.

General Verrilli asserted that the government had the right to defend the honor of those who actually earned these awards:

GENERAL VERRILLI:  And what I think with respect to the government's interest here and why there is a harm to that interest is that the point of these medals is that it's a big deal. You get one for doing something very important after a lot of scrutiny. And for the government to say this is a really big deal and then to stand idly by when one charlatan after another makes a false claim to have won the medal does debase the value of the medal in the eyes of the soldiers. It does do that. That is the government's interest. We think that is a real and substantial interest, and it's threatened here -

JUSTICE SOTOMAYOR: But the reality here is that this gentleman [Alvarez] was publicized, deriled for what he did. His public position was compromised, as is the case with almost everyone who's caught at lying.

GENERAL VERRILLI: But, given that this is a category of calculated factual falsehood, we think the government has the authority and the constitutional -and the constitutional space to try to deter this kind of speech …

In tomorrow's post I will describe what occurred during the oral argument when the attorney for Mr. Alvarez attacked the constitutionality of the Stolen Valor Act.

Wilson Huhn teaches Constitutional Law at The University of Akron School of Law.

More than one-fourth of Americans now live in jurisdictions that recognize same-sex marriage.  Within five years more than half of Americans may live in such jurisdictions.  But there are legal barriers.

Today's Kansas City Star has an article by Curtis Tate, Gay Marriage Question Evolves One State at a Time, in which he reviews the recent progress of the marriage equality movement and observes that this social issue is being decided one state at a time:

Increasingly, courts and state legislatures have decided that same-sex couples shouldn't be treated differently from opposite-sex couples. It's an incremental process, playing out state by state, reflecting the feelings of a changing but still divided public.

Tate concludes his article with observations that public opinion is slowly shifting in favor of same-sex marriage:

According to a Pew Research Center poll in November, 46 percent of Americans supported same-sex marriage, while 44 percent opposed it. That's a dramatic shift from 2006, when the same poll showed that 33 percent supported it, while 56 percent opposed it. Among people from ages 18 to 30, 59 percent supported it last year.  "Public opinion is moving pretty quickly," said Jane Schacter, a law professor at Stanford University and an expert on sexual-orientation law. "The long-term outcome is pretty clear. The question is how long does it take."

Currently, over 85 million Americans live in states where gay and lesbian couples are allowed to marry.  How long will it take before the rest of the country follows suit?

Nate Silver, the noted predictive analyst for the New York Times, tracks the level of acceptance in the United States.  In April, 2011, he found that support for same-sex marriage had increased 8% in two years, or 4% per year, more than double the historical average.  In 2010 Hank Pellissier, writing for the Institute for Ethics and Emerging Technologies, created a model of state-by-state changes that assumed a slower rate of acceptance – 1% per year.  Using this model Pellissier predicted that New Jersey would adopt same-sex marriage in 2011, Washington in 2012, and Maryland in 2013.  I have based the following figures on Pellissier's predictions.

Counting California, at the moment more than 85 million Americans live in nine states and the District of Columbia that recognize same-sex marriage.  According to Pellissier, between 2012 and 2014 another ten states with a population of more than 45 million people will join this group.  In the next two years, according to Pellissier, five more states with a population of 44 million people will embrace marriage equality.  At that point, 175 million Americans – 56% of the country – will live in places where gay and lesbian couples can marry.

However, there is a legal roadblock that may slow this development.  Eight of the states (indicated by an asterisk* below) slated to enact same-sex marriage by 2016 have provisions in their state constitutions prohibiting this.  In order for same-sex marriage laws to be adopted in these states one of three  things would have to happen.  (1) The people of the state would have to amend their constitution; (2) A court would have to rule that under Romer v. Evans it violates the First and Fourteenth Amendments of the United States Constitution for a state constitution to prevent a state legislature from adopting a law opening up marriage to gays and lesbians; or (3) A court would have to rule that the United States Constitution guarantees gay and lesbian couples the right to marry regardless of any state law.

As more jurisdictions recognize these marriages as valid, political and economic factors will increasingly come into play.  When a married same-sex couple moves to a state that does not recognize their marriage as valid, the state that performed the marriage is going to be irritated at the state of their new residence.  There could be negotiation or retaliation between the states.  More seriously, if DOMA is found to be unconstitutional (as two district courts have now ruled), federal employees who are moved from state-to-state will be have their marriages recognized, not recognized, and perhaps recognized again depending on where they live.  People aren't going to like that.  Most significant of all, members of the military have the right to declare their domocile to be anywhere in the United States; they will be living as married couples in states that otherwise do not recognize their marriages.  These and other factors may well lead to a "tipping point" that will accelerate the process of change in the remaining states.

Here are the statistics regarding the population of the states that currently recognize same-sex marriage, and of those that may be next in line.

States That Currently Recognize Same-Sex Marriage

Hazma Kashgari, a 23-year-old Saudi journalist, faces the death penalty for tweeting his doubts about the divinity of the Prophet Mohammed.  This is a reminder of our own struggles to establish freedom of speech and freedom of religion.

There are times when we must express our gratitude to our ancestors for building a just and rational civilization.  Five hundred years ago we escaped the madness of the Inquisition; three hundred twenty years ago we held the last witch trials; in 1791 we made freedom of religious expression part of our fundamental law by adopting the First Amendment to the Constitution.  However, for most of our history the Supreme Court failed to enforce the First Amendment or adequately protect freedom of expression and freedom of religion.  In the 1920s two of our greatest justices, Oliver Wendell Holmes and Louis Brandeis, in a series of dissenting opinions, called for enforcement of the First Amendment.  It was not until 1940 in the case of Cantwell v. Connecticut that the Supreme Court, for the first time, applied the principle that religious speech may not be punished simply because it causes unrest or makes other people angry.  Since then the Supreme Court has vigorously protected freedom of expression.  

Saudi Arabia has not yet begun this march towards freedom of expression and religious liberty.

February 4, 2012, was Mawlid, the birthday of Mohammed.  On that day Hazma Kashgari, a young Saudi journalist, tweeted three messages regarding his beliefs about Mohammed:

On your birthday, I will say that I have loved the rebel in you, that you've always been a source of inspiration to me, and that I do not like the halos of divinity around you. I shall not pray for you.

On your birthday, I find you wherever I turn. I will say that I have loved aspects of you, hated others, and could not understand many more.

On your birthday, I shall not bow to you. I shall not kiss your hand. Rather, I shall shake it as equals do, and smile at you as you smile at me. I shall speak to you as a friend, no more.

Kashgari deleted the tweets and apologized, but that was apparently not sufficient for the Saudi authorities.  King Abdullah called for Kashgari to be punished.  Kashgari fled to Malaysia, but Malaysian authorities have now agreed to extradite Kashgari back to Saudi Arabia.

Earlier today a Saudi news outlet, the Arab News, in  a story headlined Worshippers Want Kashgari Punished, reports:

Kashgari fled to Malasyia after realizing that the deletion of his slanderous comments and the repentance he had announced in his tweets were not enough to save his neck. He was arrested on arrival at Kuala Lumpur airport on Thursday.  …

The imams and the worshipers strongly denounced the slanderous comments against the Prophet and said anyone who dared to badmouth the Prophet should be severely punished to deter others from doing the same.  …

A number of worshipers said they were determined to file lawsuits against Kashgari in Shariah courts calling for his execution on charges of apostasy.

We in America have some advice for the Saudi imams and worshippers shouting for Kashgari to be executed.

First, you betray your own doubts.  If you were confident in your beliefs about Mohammed you would find it unnecessary to punish those who disagree with you.  As Justice Oliver Wendell Holmes wrote in 1919 in Abrams v. United States, dissenting from the decision of the majority to affirm the conviction of an antiwar protester:

Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care whole heartedly for the result, or that you doubt either your power or your premises. But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas � that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.

Second, you show yourselves to be cowards.  It is Kashgari who earns our respect, not the crowd clamoring for his execution.  As Brandeis said in 1927 in his opinion in Whitney v. California, disagreeing with the decision of the majority to make it a crime to organize a meeting of the Communist Party:

Those who won our independence believed that the final end of the state was to make men free to develop their faculties, and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law-the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.

Third, repression is counterproductive.  The harsher the punishment you dispense and the more often it is imposed, the more you call your beliefs into question.  Robert Jackson articulated this in 1943 in his majority opinion in West Virginia Board of Education v. Barnette, in which the Court upheld the right of schoolchildren to refuse to salute the American flag:

Struggles to coerce uniformity of sentiment in support of some end thought essential to their time and country have been waged by many good as well as by evil men. Nationalism is a relatively recent phenomenon but at other times and places the ends have been racial or territorial security, support of a dynasty or regime, and particular plans for saving souls. As first and moderate methods to attain unity have failed, those bent on its accomplishment must resort to an ever-increasing severity. As governmental pressure toward unity becomes greater, so strife becomes more bitter as to whose unity it shall be. Probably no deeper division of our people could proceed from any provocation than from finding it necessary to choose what doctrine and whose program public educational officials shall compel youth to unite in embracing. Ultimate futility of such attempts to compel coherence is the lesson of every such effort from the Roman drive to stamp out Christianity as a disturber of its pagan unity, the Inquisition, as a means to religious and dynastic unity, the Siberian exiles as a means to Russian unity, down to the fast failing efforts of our present totalitarian enemies. Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.

The kind of repression being directed against Hazma Kashgari makes it impossible for the people of Saudi Arabia to enter the modern world or contribute to human progress.  How can your people embrace democracy if you do not allow them to freely express their opinions?  How will your people make scientific discoveries if they are not permitted to challenge recieved wisdom?  How will your society ever change if your people may not question authority? 

We in America slowly learned these lessons through bitter experience.  Now it is your turn.

Wilson Huhn has taught Constitutional Law at the University of Akron for what seems like forever.  He maintains a website on Constitutional Law with what he regards as useful sources and materials.

Does a city have a constitutional right not to fly a particular flag?

Lexington, Virginia, is an historic city of the Confederacy.  Robert E. Lee and Thomas ("Stonewall") Jackson, the two greatest generals of the Confederacy – and two of the greatest military tacticians America has produced - are buried there, and the city is home to both the Virginia Military Institute, a storied military college whose students fought valiantly in the Civil War, and Washington & Lee University, renamed when Lee became President of the college after the Civil War. 

Lee's defensive schemes stymied the vastly larger and better equipped Union armies, while Jackson's brilliant offensive strikes drove them back.  Neither man wanted Virginia to secede from the United States, but their loyalty to their state outweighed their loyalty to their country.  Had these two men led national armies instead of those of Virginia the Civil War would not have lasted a year.

Jackson died at Chancellorsville, but Lee survived and left military life behind, choosing instead to instruct our nation's youth.  When Lee's army surrendered in 1865 Jefferson Davis, President of the Confederacy, vowed to continue the struggle and encouraged southerners to mount a guerrilla war against their government, but General Lee simply told his soldiers:

"Boys, I have done the best I could for you. Go home now. And if you make as good citizens as you have soldiers, you will do well. I shall always be proud of you. Goodbye. And God bless you all."

On Thursday evening, the city council of Lexington, Virginia, voted 4-1 to permit only three flags to fly from public light poles downtown – the American flag, the Virginia flag, and a yet-to-be designed municipal flag.  This ordinance was the result of dissent that arose when the Confederate flag was displayed on public light poles during the annual Lee-Jackson Day festivities in January.  Many city residents – particularly African-American residents – complained that the Confederate flag is a symbol of slavery and as such the city should not officially display it. 

The Lexington ordinance does not restrict private displays of the Confederate flag.  It is clear that individuals and private organizations have the right, under the First Amendment, to fly any flag they wish – or to burn or trample upon a flag.  Displaying or destroying a flag is symbolic speech – expressive conduct – and it receives the same constitutional protection as speaking or writing.

Cities and all other governmental units also have constitutional rights under the First Amendment.  Governmental entities are restricted in one respect that individuals and private organizations are not; because of the separation of church and state, the government may neither endorse nor attack religion.  The government must remain neutral with respect to religion.  But in matters relating to social issues or foreign or domestic policy the government is nearly as free to issue communications or express its views as any citizen.

So the City of Lexington is perfectly within its rights to restrict public light poles to the display of only three official flags.

Was its decision wise?  Did city council do the right thing?

Roberta Anderson of the local News-Gazette, in Lexington Council Approves Flag Ordinance, and  Steve Szkotak of the Associated Press, in Lexington, Virginia Limits Confederate Flag-Flying, report on reaction from people supporting and protesting the city's decision.  On the one hand, the Southern Cross is a painful reminder of the period of slavery.  The southern states seceded for one reason, and one reason only – the institution of slavery was under attack.  By 1860 the rest of the country had decided that slavery would not be extended westward, and as a result the slave states would henceforth be outvoted in the House of Representatives, the Senate,  and the Electoral College.  The south had largely controlled the federal government since the founding of the country, and that control was now slipping from its grasp.  It was only a matter of time before slavery itself – the principal source of wealth in the agrarian, feudal economy of the south – would be abolished.  Southern leaders clamored for war, and when war came, ordinary southerners fought not so much for slavery but to defend their homeland from invasion. 

They fought with courage against great odds.  Approximately one-fourth of all southern white males of military age were killed, and most of the rest were wounded in that conflict.  Even more Union soldiers were killed and wounded.  For many southern whites the Southern Cross is an emblem of the pride they justly feel for the perseverance of their ancestors.  I share that pride, for both Union and Confederate soldiers, white and black, who fought so bravely.  That is why I visited the Jackson House and Jackson's grave in Lexington.  It is humbling to remember the sacrifices that the Civil War soldiers and their families endured.

There is one more factor to consider.  The Confederate flag is not merely a reminder of the Confederacy.  It was also seized by terrorists like the Ku Klux Klan and segregationists like Alabama Governor George Wallace.  It is not simply an historical artifact.  In living memory it was wielded as a flag of hatred – of discrimination – of racial supremacy.  This cannot be denied or overlooked.  Those who wish to fly the Southern Cross only to pay homage to their Confederate ancestors are burdened with this legacy as well.  I believe that it is because of this more recent use that the Southern Cross was abandoned by the City of Lexington.  There is no lack of pride in the Confederacy.  But the City refuses to fly a flag that has acquired another, more sinister, meaning.  There are surely other symbols of the Confederacy – even other flags – that could be used on occasions like Lee-Jackson day.  While it is appropriate to honor Generals Lee and Jackson and their soldiers, in so doing it is not necessary to inflict harm upon the victims of slavery and discrimination.

Professor Huhn has taught Constitutional Law at the University of Akron for over a quarter century. You may access his websites on Constitutional Law and Health Care Financing Reform for additional materials and information about those subjects. Drafts of his scholarly work are available from his author page at ssrn: http://ssrn.com/author=83790.

On August 3, the New England Journal of Medicine published Higher First Amendment Hurdles for Public Health Regulation by Kevin Outterson.  This brief essay contains an excellent review of the commercial speech doctrine in general and the Supreme Court's recent decision in Sorrell v. IMS Health, Inc. in particular.

In a previous essay, 2010-2011 Supreme Court Term: Decision in Sorrell v. IMS Health, Inc.,  I wrote that my principal objection to the Court's decision is Sorrell is that it extends constitutional protection to commercial data mining.  Under Sorrell, any person including international business conglomerates now have a constitutional right under the First Amendment to troll for data about purchasing habits, including sensitive medical information.  This represents a vast expansion of the "commercial speech" doctrine.  Until the Sorrell decision was handed down, the purpose of the First Amendment in the commercial context was to protect the free flow of information to consumers.  It now appears that the Supreme Court understands the Constitution to guarantee the right of corporations to spy on American citizens.

Outterson raises an additional objection to the Court's decision in Sorrell.  He notes that the language of Justice Kennedy's opinion for the majority in Sorrell calls into question limitations on advertising for other products that the government quite reasonably seeks to limit for public health purposes.  Outterson writes:

Outside the pharmaceutical realm, this decision also bodes ill for marketing regulation of food, tobacco, alcohol, and other products with important public health effects. Kennedy�s opinion notes that �the State may not seek to remove a popular but disfavored product from the marketplace by prohibiting truthful, nonmisleading advertisements that contain impressive endorsements or catchy jingles. That the State finds expression too persuasive does not permit it to quiet the speech or to burden its messengers.� One could surmise from this position that cigarette manufacturers might have a First Amendment right to broadcast TV advertisements or target young prospective smokers with cartoons. By contrast, regulations requiring additional speech � such as menu and food-labeling laws � might better survive First Amendment review.

In essence, Justice Kennedy is adopting a rigid formula that would give the government two choices: either ban a product entirely, or allow it to be sold with "impressive endorsements or catchy jingles."  The Supreme Court does not perceive there to be a middle ground when we are dealing with dangerous products such as cigarettes, which are both addictive and carcinogenic.  Many people believe that it should be legal to purchase and use such products but illegal to promote their use.  Kennedy's constricted understanding of the First Amendment would not allow our society to adopt that reasonable "middle ground" between complete prohibition and utter license.  Prohibition is not always the wisest public policy, as our experiment with national prohibition of alcohol demonstrated.  Nor would it make sense to utterly prohibit the consumption of tobacco products.  There is now support for decriminalization of drugs such as marijuana and even cocaine and heroin, in the belief that our resources should be directed towards treatment and education rather than interdiction and incarceration.  If we were to decide to adopt such a policy, does the Supreme Court mean to say that producers of these drugs would have a constitutional right to encourage people to consume them?  For several decades a number of justices have wielded the First Amendment to champion business interests – notably the alcohol, tobacco, pharmaceutical, and gambling industries – over the public policy and public health concerns of consumers.  It is time for the Supreme Court to adopt a more balanced understanding of the First Amendment that would take into account the risk of harm to consumers resulting from promotion of dangerous products – as well as the privacy interests of American citizens to be free of data mining.

In October 2010 commentator Juan Williams was fired from NPR for remarks he made about Muslims.  His firing was unjustified.

David Folkenflik, in a story posted at NPR on October 21, 2010 NPR Ends Williams' Contract After Muslim Remarks, reported that NPR fired Williams because of the following comment he made on Bill O'Reilly's program at Fox:

"Look, Bill, I'm not a bigot. You know the kind of books I've written about the civil rights movement in this country. But when I get on the plane, I got to tell you, if I see people who are in Muslim garb and I think, you know, they are identifying themselves first and foremost as Muslims, I get worried. I get nervous."

Williams also warned O'Reilly against blaming all Muslims for "extremists," saying Christians shouldn't be blamed for Oklahoma City bomber Timothy McVeigh.

These remarks do not defame Muslims or blame all Muslims for the 9/11 attacks.  In the same interview Williams stated flatly that America is not at war with Islam.  When his remarks are taken literally, Williams is simply confessing to being nervous and worried with other people on a plane dressed in traditional Muslim clothing.

There are many situations where people may be nervous around others of a different race or religion.  Everybody has moments like that, particularly in large crowds of persons of a different heritage.  These feelings are common.

Furthermore, it is undeniable that America is at war with small groups of Muslim fundamentalists, and that these groups have carried out attacks against Americans on airplanes and on our own soil.  Had Williams stated that his nervousness at seeing or riding on a plane with a Muslim was not simply understandable but justified – that we ought to be nervous with a Muslim on a plane – that we should fear all persons whose dress identifies themselves as Muslims – that would be a different matter.  In light of the remainder of his remarks it is not reasonable to construe Williams' remarks to mean this.

Williams is the author of several major civil rights works, including Eyes on the Prize: America's Civil Rights Years, 1954-1965, and Thurgood Marshall: American Revolutionary.  He also has written documentaries including Politics – The New Black Power, Marian Anderson, and A. Philip Randolph – For Jobs and Freedom.  He has proven himself to be a careful, thoughtful scholar.  I disagree with many of the political positions he expresses on television and radio, but I admire his contributions to American life.

Williams has now published Muzzled: The Assault on Honest Debate.  Diane Rehm of NPR hosted Williams so that he could talk about his book and his mission to encourage Americans to listen to each other and be willing to learn from each other.

Williams' message is absolutely critical for the future of our country.  We need rational solutions to the problems that beset us.  Those solutions will not emerge from shouting matches or exercises in ridicule – or from an unwillingness to acknowledge our own fears, even when those fears may be viewed as politically incorrect.

To no-one's surprise, a majority of the Supreme Court voted to strike down an Arizona law that provided public funds to political candidates matching the amounts raised their opponents.

Last week the Supreme Court released its decision in Arizona Free Enterprise Club's Freedom PAC v. Bennett. 

The Arizona Citizens Clean Election Act provided public funds to political candidates who agreed not to solicit or receive private funding.  If an opponent of a publicly-financed candidate raised more money either from contributors or from his or her own pocket, or from independent sources funding political advertising, the state would match the funding up to double the original amount of the public funding.  The persons challenging this law contended that the matching funds provision infringed upon their freedom of speech – that it discouraged them and their supporters from spending private funds on political campaigns.

In an opinion authored by Chief Justice John Roberts, the Supreme Court agreed, relying in principal part upon its previous decision in Davis v. Federal Election Commission (2008), in which the Court struck down the "Millionaire's Amendment" to the Bipartisan Campaign Finance Act.  That law increased the amount of money that candidates could accept from individual contributors if their opponents financed their campaigns with their own funds.  In other words, the Millionaire's Amendment changed the rules of the game for candidates opposing self-financing candidates, and the Supreme Court found that constituted an unconstitutional penalty on political speech.

In this case, the Supreme Court found that Arizona's "matching funds" provision constitutes an even greater invasion of First Amendment rights than the Millionaire's Amendment did.  The majority reasoned that with the Millionaire's Amendment the "poorer" candidate himself or herself had to raise the increased allowance of funds from contributors – here the increased matching funds were provided automatically by the State of Arizona.  Furthermore, the majority stated, under the Arizona law public matching funds may be triggered by independent expenditures of the privately-financed candidate's supporters, while the matching funds are paid directly to the publicly-financed candidate, thus conferring a substantial advantage on the publicly-financed candidate.

The majority did not declare public funding to be unconstitutional – it simply found that the amount of public funding a candidate receives may not be made contingent upon the amount of private funding contributed to an opponent.

Writing for the dissent, Justice Kagan argued that the Arizona matching funds law does not infringe upon the First Amendment rights of privately-funded candidates because it does not inhibit political speech – rather it enhances political speech.  She stated:

The program does not discriminate against any candidate or point of view, and it does not restrict any person�s ability to speak. In fact, by providing resources to many candidates, the program creates more speech and thereby broadens public debate.

This is yet another in a series of Supreme Court decisions equating campaign contributions with speech, and applying First Amendment principles to campaign finance laws.  It is also yet another decision in an unbroken string since Justice O'Connor left the Court in 2006 striking down campaign finance laws.  Prior to Justice O'Connor's retirement Justice Kennedy strongly opposed the constitutionality of these laws, dissenting in several cases that upheld them; since her retirement both Justice Kennedy and Justice Alito, her replacement, have voted against the constitutionality of these laws.

Professor Huhn has taught Constitutional Law at the University of Akron for over a quarter century. You may access his websites on Constitutional Law and Health Care Financing Reform for additional materials and information about those subjects. Drafts of his scholarly work are available from his author page at ssrn: http://ssrn.com/author=83790

Yesterday the Supreme Court released its decision in Brown v. Entertainment Merchants Association.  The Court struck down a California law that made it illegal for merchants to sell violent video games to children.  The Court found that this law violates the First Amendment.

Justice Scalia authored the decision for the Court.  He was joined by four other justices: Kagan, Sotomayor, Ginsburg, and Kennedy.  Justice Scalia relied primarily upon the decision of the Court last year in United States v. Stevens, where the Court struck down a federal law prohibiting the creation or dissemination of recordings of animal cruelty.  The Court in that case had found:

1.  Depictions of animal cruelty are not an "unprotected category of speech" because historically the government has not regulated violent speech;

2.  Under strict scrutiny, the government was unable to prove that the sale of videos depicting animal cruelty stimulated acts of animal cruelty, the was that the market for child pornography stimulated sexual abuse of children; and

2.  The "Depictions of Animal Cruelty" statute was too vague and might be applied to protected speech such as documentaries about hunting, bullfighting, or the processing of farm animals.

In this case Justice Scalia followed a similar pattern of reasoning.  He found that there is no American tradition of regulating violent expression aimed at children, and therefore there was no "unprotected category" of such speech.  He found that the State of California had failed to prove that exposure to violent video games causes violence in children.  And he found that the implications of this law would allow unprecedented restriction on what children may be exposed to.  Justice Scalia referenced a number of examples of violent art or literature that children or young teens may be exposed to: Grimm's Fairy Tales, Greek myths, Saturday morning cartoons, the Inferno, and Lord of the Flies – suggesting that therefore violent video games could not be singled out for prohibition. 

Justice Alito, joined by Justice Roberts, issued a separate concurring opinion.  Justice Alito agreed with the result but not the reasoning of the majority.  Here are the introductory paragraphs of the concurring opinion:

The California statute that is before us in this case represents a pioneering effort to address what the state legislature and others regard as a potentially serious social problem: the effect of exceptionally violent video games on impressionable minors, who often spend countless hours immersed in the alternative worlds that these games create. Although the California statute is well intentioned, its terms are not framed with the precision that the Constitution demands, and I therefore agree with the Court that this particular law cannot be sustained.

I disagree, however, with the approach taken in theCourt�s opinion. In considering the application of unchanging constitutional principles to new and rapidly evolving technology, this Court should proceed with caution. We should make every effort to understand the new technology. We should take into account the possibilitythat developing technology may have important societal implications that will become apparent only with time. We should not jump to the conclusion that new technologyis fundamentally the same as some older thing with which we are familiar. And we should not hastily dismiss the judgment of legislators, who may be in a better position than we are to assess the implications of new technology. The opinion of the Court exhibits none of this caution.

In the view of the Court, all those concerned about the effects of violent video games�federal and state legisla-tors, educators, social scientists, and parents�are unduly fearful, for violent video games really present no seriousproblem. Spending hour upon hour controlling the actions of a character who guns down scores of innocent victims is not different in �kind� from reading a description of violence in a work of literature.

The Court is sure of this; I am not. There are reasons to suspect that the experience of playing violent video games just might be very different from reading a book, listening to the radio, or watching a movie or a television show.

Justice Alito would strike down the law solely because the State failed to narrowly define the term "violent video game" – he would have left the door open to a more narrowly tailored statute, just as the Court did in Stevens.

Justice Thomas dissents from the Court's decision on the ground that it does not comport with the original understanding of the framers – either the framers of the First Amendment or the framers of the Fourteenth Amendment.  Thomas suggests that people such as the Entertainment Merchants Association do not have a constitutional right to speak to other's people's children – that traditionally parents have had the authority to limit and control who may speak to their children.  Thomas asserts that this was the original understanding of the framers of the Constitution, and that accordingly the law is constitutional because the plaintiffs have no constitutional basis for their First Amendment claim.

Dissenting separately, Justice Steven Breyer concedes that the constitutionality of this law is governed by strict scrutiny, but he contends that the government has met its burden of proof in this regard.  In particular, he suggests that the closest precedent is not United States v. Stevens but rather Ginsburg v. New York, the case in which the Court upheld a law prohibiting the sale of pornography to minors.  Breyer observes that the California law merely prohibits sale to minors, not production and dissemination generally, and that the restriction on freedom of expression is therefore narrower than the total ban that was involved in Stevens.  Breyer would find that the protection of children is a compelling governmental interest, and that the law is sufficiently narrowly tailored to pass constitutional muster.

I gravitate strongly toward the practical reasoning of Justices Alito and Breyer and away from the historical analysis of Justices Scalia and Thomas.  One objection I have to the historical approach is that it is so manipulable.  Justice Scalia, for example, points to Grimm's Fairy Tales as examples of violent fare traditionally fed to children, but do you know any parents who still tell these stories to children at least in a form remotely like the gory originals?  Nor would it be appropriate for parents to read the Inferno  to little children or show them art based upon that masterpiece.  We make nervous jokes about what movies children should be exposed to:  "Joey … do you like movies about gladiators?"  The Disney version of The Hunchback of Notre Dame – bowdlerization that it may be – is far more typical of what American parents allow their children to view than Victor Hugo's original.  Very simply, there is a longstanding tradition of limiting children's exposure to violence.  The movie rating system and limitations on daytime broadcast of programs unsuitable for children are but two examples.  Justice Scalia could have pointed to all those traditions instead of the competing tradition of license, and this law could have easily been upheld on that ground.

I prefer the balancing approach because I believe that every other form of analysis masks it.  The language of the Constitution ("Congress shall make no law … abridging the freedom of speech") merely sets us on the path but does not tell us how far we may go down it – in this case, whether we may prohibit the sale of violent video games to children.  The framers of the Constitution and the Fourteenth Amendment had very little to say about this particular topic, perhaps because video games would not be invented until several generations later.  As described above, there are competing American traditions on this subject, as well as competing precedents such as Stevens and Free Speech Coalition on the one hand and Ginsburg and Pacifica on the other.  Ultimately we call upon the Supreme Court to decide whether the expressive interests of merchants in selling violent video games directly to children outweighs the harm that may result from children playing those games.  I don't see any way around the Court having to make that difficult judgment.

Professor Huhn has taught Constitutional Law at the University of Akron for over a quarter century. You may access his websites on Constitutional Law and Health Care Financing Reform for additional materials and information about those subjects. Drafts of his scholarly work are available from his author page at ssrn: http://ssrn.com/author=83790

The Supreme Court has issued its decision in Sorrell v. IMS Health, Inc.  The most significant aspect of this case is that the Court, by a vote of 6-3, recognizes that business enterprises have a First Amendment right to sell and purchase information generated by commercial transactions.  This case extends and expands the recent trend finding that privacy rights have to yield to freedom of expression.In Bartnicki v. Vopper (2001)  the Supreme Court ruled that a radio talk-show host had a constitutional right to broadcast an illegally recorded cell phone conversation.  Earlier this year in Snyder v. Phelps (2011) the Court found that the Westboro Baptist Church had a constitutional right to mount a protest at the funeral of a soldier killed in combat, despite the agony the protest caused the soldier's family.  In both cases the Court found that the interest of the public in receiving information about matters of public interest trumps the privacy interests of private citizens.

The Sorrell case takes this principle one giant step further.  In this case the State of Vermont made it illegal for pharmacies to share certain information for marketing purposes.  Specifically, pharmacies were not permitted to tell pharmaceutical companies about the prescribing habits of physicians.  Pharmaceutical companies desire this information to enable them to encourage physicians to change their prescription tendencies, and specifically to expand their sales of brand-name drugs.  The state prohibited the sale of this information both to protect "privacy" and to discourage the marketing of brand-name drugs.

The three dissenting justices contend that this case does not even present a First Amendment issue – that neither pharmacies nor pharmeceutical companies have a constitutional right to share this information.  Even if this case does implicate the First Amendment, the dissenters contend that the Vermont law satisfies the lower constitutional standard applicable to "commercial speech."  Speaking for the dissenters, Justice Breyer states:

The Vermont statute before us adversely affects expression in one, and only one, way. It deprives pharmaceuticaland data-mining companies of data, collected pursuant tothe government�s regulatory mandate, that could help pharmaceutical companies create better sales messages. In my view, this effect on expression is inextricably related to a lawful governmental effort to regulate a commercial enterprise. The First Amendment does not require courts to apply a special �heightened� standard of review whenreviewing such an effort. And, in any event, the statutemeets the First Amendment standard this Court has previously applied when the government seeks to regulatecommercial speech. For any or all of these reasons, the Court should uphold the statute as constitutional.

The majority opinion, authored by Justice Kennedy (who has become the Court's principal spokesman on First Amendment issues), finds that the Vermont law is a content-based restriction on freedom of expression and that it unduly infringes with the free flow of information upon which our society is based.  He finds that the law would satisfy both strict scrutiny and the somewhat lower standard applicable to commercial speech.

This case involves information about the prescribing conduct of physicians, not patients, so the privacy concerns are not as strong as they were in Bartnicki and Snyder.  On the other hand, both Bartnicki and Snyder concerned political speech – "matters of public concern" – and the Court based its decision on that factor.  The information at stake in this case does not involve a matter of public concern, so the First Amendment interests are not as strong as in the previous cases.  Moreover, unlike previous commercial speech cases, the law in question in this case does not deprive consumers of information they might use in deciding whether to purchase a product or service.  What is being regulated in this case is information-sharing among businesses, and the Court holds that businesses have a constitutional right to share information about the prescription tendencies of physicians with whom it deals.

I don't like the implications of this case.  The First Amendment was designed to allow the full flowering of human potential in every realm - artistic, scientific, religious, political, and literary.  Until now the commercial speech doctrine stood for the proposition that consumers are entitled to full and complete information about products and services for sale.  I do not agree that businesses have a constitutional right to share information that is generated in commercial transactions.  Even though patient information is still protected by this law, the Court's decision will make it increasingly difficult to protect the privacy of the individual in the information age.

Professor Huhn has taught Constitutional Law at the University of Akron for over a quarter century. You may access his websites on Constitutional Law and Health Care Financing Reform for additional materials and information about those subjects. Drafts of his scholarly work are available from his author page at ssrn: http://ssrn.com/author=83790

The federal Food and Drug Administration has designed nine new warning labels for cigarette packages and advertisements depicting graphic color images of persons suffering the effects of smoking, including a close-up of cancerous mouth sores,  a man smoking through a tracheotomy, a mother blowing smoke at her baby, and a corpse.  Is it constitutional under the First Amendment for the government to compel manufacturers and advertisers to display these images?

The F.D.A. has announced that it has selected the new warnings that will appear next year on packaging and advertisements for cigarettes.  The F.D.A. website states:

Beginning September 2012, FDA will require larger, more prominent cigarette health warnings on all cigarette packaging and advertisements in the United States. These warnings mark the first change in cigarette warnings in more than 25 years and are a significant advancement in communicating the dangers of smoking.

The final set of cigarette health warnings contains nine different text warnings and accompanying color graphics to increase awareness of the specific health risks associated with smoking, such as death, addiction, lung disease, cancer, stroke and heart disease; encourage smokers to quit; and empower youth to say no to tobacco.

Catherine Pearson at Huffington Post reports the images and commentary reacting to them in New Cigarette Warnings Released (PHOTOS)

The Constitution protects commercial speech.  Under the First Amendment manufacturers have a constitutional right to design their own packaging and advertisements.  Commercial speech does not receive quite the same level of constitutional protection as political speech, but nevertheless the Supreme Court has ruled that producers and advertisers have the right both to promote their products and inform the public about them. 

Commercial speech differs from political speech in one significant regard, however.  Commercial speech that is "misleading" is not protected by the Constitution.  Political speech is fully protected no matter how misleading or idiotic it is, which is why the Westboro Baptist Church recently prevailed in Snyder v. Phelps.  We also celebrate the constitutional rights of birther conspirators and climate change deniers!

This limitation on constitutional protection for commercial speech – that it must not be misleading - leads to another distinction between the doctrines governing commercial speech and political speech.  In general people may not be compelled to express any particular political point of view.  This rule against "compelled speech" applies even to children; for example, the government may not require public school students to salute the American flag or recite the Pledge of Allegiance.  However, the "compelled speech" doctrine does not apply to commercial speech.  Advertisers and packagers may be required to disclose all sorts of information to the public – warning labels, drug interactions, nutritional information, and any limitations on offers or disclaimers about products. 

The F.D.A.'s new warning labels for cigarettes will test the limits of the rule permitting "compelled speech" for advertisers.  These graphic images are extremely disturbing, and are designed to have an emotional impact on prospective purchasers.  The new labels do not simply convey more information; they are essentially anti-smoking advertisements.

For years manufacturers have argued that promotional advertisements are entitled to the same constitutional protection as informational advertisements – that manufacturers have a constitutional right to advertise not only the prices of prescription drugs or alcohol and nicotine content but also to portray a young, healthy couple romping in the surf smoking or joyful people drinking or gambling.  Now the tables have turned and the government seeks the right to compel the display of images that will persuade people not to purchase the product in question – and the manufacturers themselves will have to bear the cost of disseminating these negative images whenever they advertise or distribute their product.  Will the courts declare a constitutional symmetry between manufacturers and the government on this point and uphold "anti-promotional" warning labels, or will they find that the government only has the right to compel the disclosure of information and not graphic images? 

 The basic theory of the First Amendment is the "marketplace of ideas" – the Constitution presumes that more information is better.  The difference between political and commercial speech is that the producer of a product may be required to disseminate all of the relevant information about the product on both sides - perhaps even in graphic form.

I can't say that I feel sorry for the cigarette manufacturers.  They kill tens of millions of people annually; it would be difficult to find an American family who has not been blighted by them.  People who market and sell addictive, carcinogenic products should have to clearly disclose what they are doing.

Professor Huhn has taught Constitutional Law at the University of Akron for over a quarter century. You may access his websites on Constitutional Law and Health Care Financing Reform for additional materials and information about those subjects. Drafts of his scholarly work are available from his author page at ssrn: http://ssrn.com/author=83790

Professor Will Huhn is quoted in a Westlaw News and Insight story on gay marriage and the First Amendment. Read the story here .

A new law takes effect in France today prohibiting women from wearing face veils in public.

Camille Rusticci of AP in France bans face-covering Islamic veil reports about the national law prohibiting the wearing of full-face veils in public that went into effect in France today.  She  also describes a demonstration that was conducted in front of Notre Dame Cathedral protesting the ban.  She states:

About a dozen people, including three women wearing niqab veils with just a slit for the eyes, staged a protest in front of Notre Dame on Monday, saying the ban is an affront to their freedom of expression and religion.

Much larger crowds of police, journalists and tourists filled the square.

One of the veiled women was seen taken away in a police van. A police officer on the site told The Associated Press that she was detained because the protest was not authorized and the woman refused to disperse when police asked her to.

The Open Society Foundation, funded by George Soros, issued a report today entitled Unveiling the Truth: Why 32 Women Wear the Full-Face Veil in France.  It paints a  sympathetic portrait of these women – they are nearly all French citizens, they freely choose this manner of dress, and they report that they increasingly encounter criticism and rude comments when they go out in public.

Stephanie Le Bars of Le Monde responds to the Open Society report in an article published today entitled Des femmes vivant avec le voile intégral témoignent ("Women living with the full-face veil speak out").  She states:

Marquée par une approche anglo-saxonne et une incompréhension face aux débats récurrents sur l'islam en France, cette plongée inédite précise le profil, le quotidien et les motivations de ces femmes.

Readers, please correct me if I am wrong, but I believe this translates to:

Marked by an Anglo-Saxon approach and a complete misunderstanding of the recurrent debates over Islam in France, this unpublished study describes the characteristics, daily life, and motivations of these women.

Take that, you Open-Society Anglo-Saxons!

Whatever our understanding of the situation in France, Le Bars is correct that such a law would not stand in this country.  Although there may be circumstances where a person would have to remove a full-face veil – to be photographed for a passport or a driver's licence, entering or leaving the country at the border, going through airport security, or upon arrest – it is inconceivable that a law prohibiting women from voluntarily wearing veils in public would be upheld as constitutional in the United States – no more than a law banning the wearing of headscarves in the public schools (adopted in France in 2004) would be upheld.

The Republican-dominated House of Representatives voted Friday to repeal the FCC's "Net Neutrality" regulations.  Democrats vow to retain the rules.  Both sides accuse the other of being "anti-innovation".

Jim Abrams of the AP reports House votes to repeal regs on internet access.   Last December the FCC adopted regulations prohibiting internet service providers from "unreasonably" discriminating against users based on content or bandwidth.  The FCC acted because Comcast and other ISPs had blocked transmission of data on Skype and Netflix so that they could promote their own communication or filesharing products.  Here is Abrams' description of the rules that the FCC put in place:

The rules prohibit phone and cable companies from favoring or discriminating against Internet content and services, including online calling services such as Skype and Web video services such as Netflix that could compete with their core operations. They require broadband providers to let subscribers access all legal online content.

They do give providers flexibility to manage data on their systems to deal with network congestion and unwanted traffic as long as they publicly disclose those practices. They do not specifically ban "paid prioritization," where a provider might charge more for faster transmission of data, but they outlaw "unreasonable network discrimination."

Wireless carriers are also barred from blocking access to any websites or competing services, but they are given more leeway to manage data traffic because wireless systems have less network bandwidth.

Tony Romm of Politico in House votes to repeal net neutrality order notes that there were a handful of defections from each political party:

By the vote's conclusion, Republicans had accrued the support of six Democratic defectors, many of whom had criticized Genachowski's initial call for explicit net neutrality rules. Two Republicans, however, joined Democrats in voting against the measure. 

Romm quotes Henry Waxman (D-CA), the ranking Democrat on the House Energy and Commerce Committee, as stating:

This bill is partisan, it is anti-innovation and it threatens to transform the open into a series of walled gardens controlled by the phone and cable companies.

Eric Cantor (R-VA) issued a press release characterizing the action of the House as a defense of free enterprise:

"Today, the House took an important step to bring down the FCC�s harmful and partisan plan to regulate the Internet. These regulations give the government unwarranted authority to control broadband networks which ultimately will hinder a thriving industry, harm competition and stifle innovation. Under Republican leadership, the House is focusing on ending anti-growth government regulations, and I thank the House Energy and Commerce Committee and Chairmen Upton and Walden for leading the charge against the FCC's attempt to regulate our nation's broadband industry. Broadband networks are more critical than ever to the success and expansion of the private sector, and we will continue to pursue policies that encourage businessmen and women to innovate and expand to ensure their long-term success. The passage of this resolution is part of House Republicans' pro-growth agenda to give business people in this country the chance to grow, innovate and compete so that people can get back to work."

A year ago I posted this report on Comcast v. FCC:  The D.C. Circuit Court Case on Net Neutrality.  In that case the Court of Appeals ruled that the FCC lacked statutory authority to issue an order punishing Comcast for discriminating against certain users.

The assassination of Shahbaz Bhatti is indeed an act of blasphemy – a betrayal of the fundamental principles of freedom and equality that Pakistan was founded upon.

The Islamic Republic of Pakistan makes it a crime to utter any word, make any sound, make any gesture, or place any object in the sight of another person "with the deliberate intention of wounding the religious feelings of any person."  Although the law as written applies to insults against any religion, as a practical matter this law is only applied when Islam is the subject of the insulting word, sound, gesture, or object.  While the government has never executed anyone for blasphemy, dozens of people have been killed by vigilantes for this offense.

On March 2nd, The Telegraph reported Pakistan's only Christian minister assassinated over blasphemy row.  Shahbaz Bhatti, Pakistan's  Minister for Minority Affairs, was murdered because he opposed Pakistan's blasphemy law.  Bhatti had defended Asia Bibi, a Christian mother of five who faces execution for insulting the Prophet Mohammed.  This follows the murder earlier this year of Salman Taseer, Governor of Punjab, who was killed by his bodyguard for the same reason. 

In her Time Magazine article In Pakistan, Justifying Murder for Those Who Blaspheme, Aryn Baker reports that these murders have met with widespread approval from the people of Pakistan, even among the lawyers who helped to lead a "liberal" uprising against the government in 2008, who garlanded Bhatti's assassin with roses.

To show that this is not what Pakistan stands for, Baker quotes Mohammed Ali Jinnah, the "Father of Pakistan," from his speech of August 11, 1947, where Jinnah expressed his vision of the future of his country.  The passage quoted by Baker is highlighted below:

There is no other solution. Now what shall we do? Now, if we want to make this great State of Pakistan happy and prosperous, we should wholly and solely concentrate on the well-being of the people, and especially of the masses and the poor. If you will work in co-operation, forgetting the past, burying the hatchet, you are bound to succeed. If you change your past and work together in a spirit that everyone of you, no matter to what community he belongs, no matter what relations he had with you in the past, no matter what is his colour, caste or creed, is first, second and last a citizen of this State with equal rights, privileges, and obligations, there will be no end to the progress you will make. I cannot emphasize it too much. We should begin to work in that spirit and in course of time all these angularities of the majority and minority communities, the Hindu community and the Muslim community, because even as regards Muslims you have Pathans, Punjabis, Shias, Sunnis and so on, and among the Hindus you have Brahmins, Vashnavas, Khatris, also Bengalis, Madrasis and so on, will vanish. Indeed if you ask me, this has been the biggest hindrance in the way of India to attain the freedom and independence and but for this we would have been free people long long ago. No power can hold another nation, and specially a nation of 400 million souls in subjection; nobody could have conquered you, and even if it had happened, nobody could have continued its hold on you for any length of time, but for this. Therefore, we must learn a lesson from this. You are free; you are free to go to your temples, you are free to go to your mosques or to any other place or worship in this State of Pakistan. You may belong to any religion or caste or creed that has nothing to do with the business of the State. As you know, history shows that in England, conditions, some time ago, were much worse than those prevailing in India today. The Roman Catholics and the Protestants persecuted each other. Even now there are some States in existence where there are discriminations made and bars imposed against a particular class. Thank God, we are not starting in those days. We are starting in the days where there is no discrimination, no distinction between one community and another, no discrimination between one caste or creed and another. We are starting with this fundamental principle that we are all citizens and equal citizens of one State. The people of England in course of time had to face the realities of the situation and had to discharge the responsibilities and burdens placed upon them by the government of their country and they went through that fire step by step. Today, you might say with justice that Roman Catholics and Protestants do not exist; what exists now is that every man is a citizen, an equal citizen of Great Britain and they are all members of the Nation. Now I think we should keep that in front of us as our ideal and you will find that in course of time Hindus would cease to be Hindus and Muslims would cease to be Muslims, not in the religious sense, because that is the personal faith of each individual, but in the political sense as citizens of the State.

I agree with the result that the Supreme Court reached in Snyder v. Phelps, the military funeral protester case.  However, the Court failed to adequately discuss three matters.

On March 2 I posted a brief summary of the Court's decision in Snyder v. Phelps upholding the right of the the Phelps' family (the Westboro Baptist Church) to engage in protests at military funerals.  As I noted there, the Court based its decision on three findings: The Phelps family was raising issues of public concern, not matters of private concern; the Phelps family was standing on public property 1000 feet away from the church and did not physically disrupt the funeral; and the laws in question that permit suit for invasion of privacy and intentional infliction of emotional distress were being applied in a content-based or viewpoint-based manner,  resulting in a strong presumption against their constitutionality as applied here.

This was a courageous decision by the Court and I support it.  The First Amendment protects the advocates of all causes, including deeply unpopular ones such as flag-burners, racists, communists, and homophobes and anti-Catholic agitators like the defendants in this case.  But the reasoning of the Court leaves something to be desired.  Specifically, the Court failed to take into account of all of the actions of the Phelps family, it neglected to explain the significance of the fact that the Snyders are private figures, and it didn't give any guidance to the lower courts in future cases involving invasions of privacy or intentional infliction of emotional distress.

Factual Omission

The Phelps family verbally harrassed the Snyders on two occasions, but the Supreme Court dealt with only one of the assaults.  The Phelps family protested at Matthew Snyder's funeral, and the Court properly found that because the protesters stood 1000 feet away from the church and did not shout or otherwise distrupt the funeral they were not liable to the Snyder family simply because of their presence.  However, three weeks after the funeral the Phelps family also published a written attack against the Snyders on the internet.  Writing in dissent, Justice Alito quoted extensively from the internet attack:

�God blessed you, Mr. and Mrs. Snyder, with a resource and his name was Matthew. He was an arrow in your quiver! In thanks to God for the comfort the child could bring you, you had a DUTY to prepare that child to serve the LORD his GOD�PERIOD! You did JUST THE OPPOSITE�you raised him for the devil.

. . . . . �Albert and Julie RIPPED that body apart and taught Matthew to defy his Creator, to divorce, and to commit adultery. They taught him how to support the largest pedophile machine in the history of the entire world, the Roman Catholic monstrosity. Every dime they gave the Roman Catholic monster they condemned their own souls. They also, in supporting satanic Catholicism, taught Matthew to be an idolater. . . . . . �Then after all that they sent him to fight for theUnited States of Sodom, a filthy country that is in lock step with his evil, wicked, and sinful manner of life, putting him in the cross hairs of a God that is so mad He has smoke coming from his nostrils and fire from his mouth! How dumb was that?�

The majority opinion by Chief Justice Roberts placed this attack to one side.  In footnote 1 of the opinion Roberts stated:

A few weeks after the funeral, one of the picketers posted a message on Westboro�s Web site discussing the picketing and containing religiously oriented denunciations of the Snyders, interspersed among lengthy Bible quotations. Snyder discovered the posting, referred to by the parties as the �epic,� during an Internet search for his son�s name. The epic is not properly before us and does not factor in our analysis. Although the epic was submitted to the jury and discussed in the courts below, Snyder never mentioned it in his petition for certiorari. See Pet. for Cert. i (�Snyder�s claim arose out of Phelps� intentional acts at Snyder�s son�s funeral� (emphasis added)); this Court�s Rule 14.1(g)(petition must contain statement �setting out the facts material toconsideration of the question presented�). Nor did Snyder respond to the statement in the opposition to certiorari that �[t]hough the epic was asserted as a basis for the claims at trial, the petition . . . appears to be addressing only claims based on the picketing.� Snyder devoted only one paragraph in the argument section of his opening merits brief to the epic. Given the foregoing and the fact that an Internet posting may raise distinct issues in this context, we decline to consider the epic in deciding this case.

There must broader range for freedom of expression on the internet than at another family's funeral, but the "epic" was nevertheless relevant to the case because it proves that the protest was directed not only at matters of "public concern" but also specifically at the Snyder family.  That  leads to the next omission in the reasoning of the Court.

The Public Figure – Private Figure Distinction

The Court devotes substantial discussion to the fact that the Phelps family was addressing political and religious issues which are matters of "public concern," and that this catefory of speech deserves the highest protection under the First Amendment.  However, the Court failed to adequately address the fact that the Snyder family are private figures, not public figures.  In dissent Justice Alito stated that the Snyders:

were private figures, and this attack was not speech on a matter of public concern. While commentary on the Catholic Church or the United States military constitutes speech on matters of public concern, speech regarding Matthew Snyder�s purely private conduct does not.

The majority did not address the fact that the Snyders are private figures.  Instead, the Court found that the "overall thrust" and "dominant theme" of the Phelps' remarks were political rather than personal.  The Court stated:

even if a few of the signs�such as �You�re Going to Hell� and �God Hates You��were viewed as containing messages related to Matthew Snyder or the Snyders specifically, that would not change the fact that the overall thrust and dominant theme of Westboro�s demonstration spoke to broader public issues.

The majority of the Court quoted from the case of Hustler Magazine v. Falwell (1988) in which the Court had dismissed Jerry Falwell's lawsuit against Hustler Magazine on the ground that the offensive cartoon constituted a "parody" of a public figure and not defamation or intentional infliction of emotional distress.  Chief Justice Roberts stated in Snyder v. Phelps:

The jury here was instructed that it could hold Westboro liable for intentional infliction of emotional distress based on a finding that Westboro�s picketing was �outrageous.� �Outrageousness,� however, is a highly malleable standard with �an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors� tastes or views, or perhaps on the basis of their dislike of a particular expression.� Hustler, 485 U. S., at 55.

However, the majority in Snyder v. Phelps simply did not discuss the fact that Jerry Falwell was a public figure while the Snyders are not.  I still believe that the Court reached the right decision, but the opinion of the Court does not tell us what the significance of the difference between public figures and private figures in cases of "intentional infliction of emotional distress."

The Constitutionality of Actions for Intentional Infliction of Emotional Distress

Justice Alito criticizes the majority for failing to afford sufficient guidance to the lower courts in future actions of this nature.  In his concurring opinion Justice Breyer attempts to supply this deficiency.  Judge for yourself whether Justice Breyer succeeds:

The dissent requires us to ask whether our holding unreasonably limits liability for intentional infliction of emotional distress�to the point where A (in order to drawattention to his views on a public matter) might launch averbal assault upon B, a private person, publicly revealing the most intimate details of B�s private life, while knowing that the revelation will cause B severe emotional harm. Does our decision leave the State powerless to protect the individual against invasions of, e.g., personal privacy, even in the most horrendous of such circumstances?

As I understand the Court�s opinion, it does not hold or imply that the State is always powerless to provide private individuals with necessary protection. Rather, the Court has reviewed the underlying facts in detail, as will sometimes prove necessary where First Amendment values and state-protected (say, privacy-related) interests seriously conflict. That review makes clear that Westboro�s means of communicating its views consisted of picketing in a place where picketing was lawful and in compliance with all police directions. The picketing could not be seen or heard from the funeral ceremony itself. And Snyder testified that he saw no more than the tops of the picketers� signs as he drove to the funeral.  To uphold the application of state law in these circumstances would punish Westboro for seeking to communicate its views on matters of public concern without proportionately advancing the State�s interest in protecting its citizens against severe emotional harm. Consequently, the First Amendment protects Westboro. As I read the Court�s opinion, it holds no more.

In my opinion, the Court failed to adequately explain its ruling.  This was a very difficult case; that does not excuse the Court for leaving out facts, skipping portions of the analysis, or neglecting to announce the applicable standard to be used in similar cases.

Professor Huhn has taught Constitutional Law at the University of Akron for over a quarter century. You may access his websites on Constitutional Law and Health Care Financing Reform for additional materials and information about those subjects. Drafts of his scholarly work are available from his author page at ssrn: http://ssrn.com/author=83790