As part of the Keller Center's mission to encourage the study of topics related to First Amendment rights and liberties, news items covering First Amendment issues are highlighted below. Check back here regularly for recent updates.
December 6, 2023: House Hearings Portray College Campuses as Hotbeds of Antisemitism, Seek Restrictions on Campus Speech
In a hearing entitled “Holding Campus Leaders Accountable and Confronting Antisemitism,” House members accused several elite universities of failing to protect Jewish students from discrimination, called for the resignation of Harvard's president, and passed a resolution declaring that "anti-Zionism is anti-semitism." The latter builds on an effort to utilize a 2019 executive order declaring it antisemitic to “deny the Jewish people their right to self-determination, e.g., by claiming that the existence of a State of Israel is a racist endeavor” or to compare Israel's policies to those of the Nazis, directing federal investigators to withhold federal funding from universities that fail to protect students from such speech or incorporate this definition of antisemitism into their codes of conduct. Commentary on the First Amendment implications of such campaigns can be found in this commentary from Slate, this interview with Eugene Volokh in Politico, and this commentary in the First Amendment News with Ronald Collins.
November 27, 2023: Trump Argues that First Amendment Protects Him from Georgia Election Interference Charges
In a filing to Fulton County Superior Court, Trump lawyer Steven Sadow challenges the former president's indictment on racketeering, criminal conspiracy and other charges by arguing that his claims about voting fraud constitued "content-based core political speech and expressive conduct protected by the First Amendment." Judge Scott McAfee had already dismissed similar First Amendment challenges from co-defendents Kenneth Chesebro and Sidney Powell, both of whom subsequently pleaded guilty. The former president is one of 19 charged in what prosecutors term a "criminal enterprise" for their attempt to overturn the 2020 presidential election. For more information, read the story in the Atlanta Journal-Constitution or the court filing that it contains.
September 25, 2023: Trump Argues that First Amendment Protects Him from Colorado "Insurrection" Ballot Disqualification
Lawyers for former president Donald Trump argued in a filing to a Colorado court that attempts to bar him from the state's presidential election on grounds that he engaged in "insurrection" for his actions on January 6th violated his constitutional rights to free speech. Section Three of the Fourteenth Amendment, intending to prevent former members of the Confederacy from taking over Congress, bars anyone that took an oath to uphold the Constitution but then "engaged" in "insurrection or rebellion" against it. According to Trump lawyer Geoffrey Blue in his petition to the court, "at no time do Petitioners argue that President Trump did anything other than engage in either speaking or refusing to speak for their argument that he engaged in the purported insurrection." The Colorado case was the first of several in which state officials sought to invoke the insurrection clause in determining Trump's state-level ballot access. See the AP story on the case for more information.
August 23, 2023: Federal Judge Denies RFK Jr.'s Restraining Order Request against Google
U.S. District Court judge Trina Thompson denied a request by Robert F. Kennedy Jr. to temporarily restrain Google from removing two videos in which the presidential candidate is alleged to have spread medical misinformation. Kennedy sued under First Amendment free speech protections, alleging that Google was censoring his speech by removing the videos. In rejecting his request, Judge Thompson wrote that Kennedy's First Amendment claim was unlikely to succeed because Google is a private entity and that Kennedy would not be irreparably harmed if the restraining order was not granted. For more information, see Politico's coverage of the story or read Judge Thompson's decision.
June 27, 2023: Supreme Court Requires First Amendment Limits on Laws Restricting Online Threats
In a case involving a Colorado man being prosecuted under Colorado law restricting repeated online communications that cause recipients serious emotional distress, SCOTUS ruled that First Amendment protections required a more demanding standard in which prosecutors must demonstrate recklessness in causing emotional harm. Writing for the majority, Justice Elena Kagen held that "the state must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence,” noting the potential threat of chilling protected speech that the Colorado law allowed. For more information, see The NY Times coverage of this story.
February 23 2022: Colorado Web Designer's First Amendment Case Reaches Supreme Court
Yesterday, the U.S. Supreme Court decided they will hear the case of a Colorado web designer who is suing over her ability to refuse work for same-sex marriage websites. Colorado law states that businesses cannot discriminate, or make statements of discrimination, against gay individuals. Lorie Smith, the Colorado web designer who owns 303 Creative, is a Christian who wanted to post a notice on her page informing potential clients of her religious beliefs stating that she can only do work that is consistent with those beliefs. Because this anti-discrimination law in Colorado forbids Smith from posting this notice, she is suing on the grounds that the law violates her rights outlined in the Free Speech and Free Exercise clauses of the First Amendment. The Court will hear 303 Creative LLC v. Elenis in its next term which starts in October. To learn more about this case, follow this link.
February 15 2022: Jury Rejects Palin's Recent Defamation Case
The recent outcome of Sarah Palin's defamation case against the New York Times has received praise from First Amendment advocates. On Tuesday, the U.S. District Court for the Southern District of New York found that there was inadequate evidence to prove that the Times had acted with malice and indeed defamed her regarding a 2017 mistaken attribution of Palin's rhetoric to the cause of a shooting. To learn more about this case, which legal experts have considered a "high stakes" test of the First Amendment, follow this link.
January 26, 2022: Federal Court Temporarily Sides with Florida Professors in Free Speech Case
Last week, the Chief Judge for the U.S. District Court for the Northern District of Florida temporarily sided with University of Florida professors who claimed that the University was infringing on their speech rights by preventing them from testifying as expert witnesses in lawsuits that would be critical of the state. The University of Florida professors on the lawsuit came from different departments and were reportedly barred from criticizing the state's voting laws, which critics have called restrictive, as well as policies set by the Governor and University relating to COVID-19. To learn more about this case, follow this link.
January 3, 2022: First Amendment Claims of Proud Boys Leaders in January 6th Case Rejected
Last week, a Trump-appointed Judge on the U.S. District Court for the District of Columbia rejected the First Amendment rights claims of four Proud Boys leaders who have been charged with conspiracy following the January 6th, 2021 attack on the U.S. Capitol. In his opinion, Judge Matthew J. Kelly wrote: "No matter the Defendants political motivations or any political message they wished to express, this alleged conduct is simply not protected by the First Amendment." To learn more about this case, which has been allowed to proceed, follow this link.
December 28, 2021: Questions Remain Regarding the Times' Coverage of Project Veritas Memos
Stemming from a 2020 lawsuit over the New York Times' coverage of the group "Project Veritas", the outlet is still unable to publish memos obtained from the far-right group that detail their tactics. After a recent decision from the Supreme Court of the State of New York's Appellate Division, the newspaper was allowed to retain the memos. However, a decision on whether the paper may go forth and publish the memos is yet to come. To learn more about this case, which First Amendment advocates have called a breach of the newspapers' rights, follow this link.
December 8, 2021: NYC Religious Schools Respond to Vaccine Mandate
Last Thursday, New York City Mayor Bill DeBlasio announced a vaccine mandate for religious and private school workers. The announcement has led to immediate backlash from religious leaders and school officials who predict future legal battles pertaining to religious freedom. To learn more about NYC's recent mandate and why religious leaders are speaking out against the mandate, follow this link.
November 10, 2021: The (New) Supreme Court and The Road Ahead
In her new book "Justice on the Brink," Yale Law-grad and New York Times reporter Linda Greenhouse recounts the recent history of the Supreme Court and charts its future direction. With three new Justices having been added to the Court in the past four years, Greenhouse looks at shifting dynamics on the Court and areas where its majority may shake things up in the coming years - including the "role of religion in the public square". You can listen to Greehouse's insights and learn more about her book from a recent interview with NPR here (transcript attached).
November 8, 2021: Anti-Critical Race Theory Bills and the First Amendment
Free speech watchdogs are raising their red flags in response to bills across the country that seek to ban critical race theory from entering curriculums. In the wake of more than half of state legislatures introducing anti-critical race theory bills, as well as recent electoral wins by conservatives who made such rhetoric a major part of their campaigns like Glenn Youngkin (R-VA), free speech advocacy groups like PEN America are expressing that less-vague Court decisions on the role of free speech in public schools are necessary. To read more about the issue, follow this link.
October 12, 2021: Supreme Court Rejects Appeal of Washington State First Amendment Case
This week, the U.S. Supreme Court rejected a First Amendment case out of Washington state. A Washington state law that gives unions access to employee information was recently challenged, with challengers arguing that the law "reserves the opportunity to identify and communicate with employees for the one speaker with the least incentive to inform them of their constitutional right to opt out (of the union)." To read more about this case and how it received by the Court, follow this link.
September 12, 2021: Texas Passes Controversial Social Media Bill
This week, Texas Governor Greg Abbott signed HB 20 into law, which prevents social media companies from censoring online viewpoints. This Texas law comes on the heels of a similar law passed by Florida earlier in the year, which was recently struck down. To read more about this bill and how it compares to the Florida law, follow this link.
August 12, 2021: U.S. District Court Judge Allows Dominion Lawsuits to Proceed
This week, a U.S. District Court Judge ruled that Dominion Voting Systems' defamation lawsuits against Trump-allies Rudy Giuliani, Sidney Powell, and Mike Lindell may go forward. Giuliani and Powell, two of Trump's lawyers, and Lindell, a Minnesotan businessman and friend of the former President, allege that the company's systems were used to swing the results of the 2020 U.S. Presidential election. To learn more about these cases, follow this link.
July 8, 2021: Gorsuch, Thomas Call to Revisit NYT v. Sullivan (1964)
Last week, United States Supreme Court Justices Neil Gorsuch and Clarence Thomas publicly called for the Court to revisit the 1964 libel case, New York Times v. Sullivan (1964). The two conservative justices called to revisit this case citing "shifts in the media landscape". To learn more about this case and the consequences of the NYT v. Sullivan ruling, follow this link.
June 5, 2021: Questions Remain Over FBI Subpoena for Media Records
Earlier this week, the FBI dropped a subpoena request that would have given federal agents access to private files from the media outlet, USA Today, in regards to their coverage of a February shooting incident that left several officers injured and two dead. To learn more about this issue and the ways in which the federal government can access the records of journalists and media outlets, follow this link.
May 31, 2021: Suit Filed Against State of Florida Over Social Media Censorship Bill
Earlier in May, Florida Governor Ron DeSantis signed a bill into law that would prevent tech/social media platforms from censoring politicians online. This week, affected companies have filed a lawsuit against the state and argue that the law violates the First Amendment. While Gov. DeSantis commented that the Republican-backed bill "took action to ensure that 'We the People'—real Floridians across the Sunshine State—are guaranteed protection against the Silicon Valley elites", the plaintiffs assert that "these unprecedented restrictions are a blatant attack on a wide range of content-moderation choices that these private companies have to make on a daily basis to protect their services, users, advertisers, and the public at large from a variety of harmful, offensive, or unlawful material." To learn more about the case and the Florida law, follow this link.
April 28, 2021: Supreme Court Addresses High School Free Speech Issue
This month, the Supreme Court will address the limits of public schools' authority to discipline students for off-campus speech. The case comes a Pennsylvania school's decision to discipline a student who made offensive remarks toward school organizations and activities on the social media platform Snapchat. To learn more about the student's lawsuit against the school, as well as the ramifications of this First Amendment case, follow this link.
March 19, 2021: Colorado Man Files Suit Over Metro District's Flag Laws
In local news: Earlier this month, a Colorado man filed suit against his Denver Metro District's laws against displaying flags freely. The man, David Pendery, is backed by the American Civil Liberties Union and calls the district law, which allows homeowners to fly the American flag freely but requires permission to fly other types of flags, a violation of free speech. To learn more about the case, follow this link.
March 9, 2021: Sixth Circuit: Kentucky Billboard Act Violates First Amendment
Earlier this month, the Sixth Circuit of the U.S. Court of Appeals ruled that the Kentucky Billboard Act, which requires individuals to file for a permit to place billboard advertisments in off-site locations, violates the First Amendment. To learn more about this case, follow this link.
February 25, 2021: Dominion Files Suit Against Lindell
Following last month's lawsuits filed against Trump lawyers Sidney Powell and Rudy Giuliani, Dominion Voting Systems recently filed another defamation lawsuit against MyPillow CEO Mike Lindell, seeking over $1.3 billion dollars in damages. An ally of the former president, Lindell was also recently suspended from Twitter after continuing to make claims of widespread fraud in the 2020 U.S. Presidential election. To learn more about this case, follow this link.
February 8, 2021: Essay - "Big Tech" and the First Amendment
"Social media sites effectively function as the public square where people debate the issues of the day. But the platforms are actually more like privately owned malls: They make and enforce rules to keep their spaces tolerable, and unlike the government, they’re not obligated to provide all the freedom of speech offered by the First Amendment." In a recent New York Times magazine article, Yale Law School fellow Emily Bazelon writes about the divergent preferences and rules by which "Big Tech" companies and the government must abide by in the realm of monitoring and regulating speech and the dissemination of ideas online. To read this essay, click here.
January 25, 2021: Dominion Voting Systems Sues Giuliani for False Election Fraud Claims
Dominion Voting Systems filed a defamation lawsuit against former New York City Mayor and recent Trump lawyer Rudy Giuliani over his claims of widespread fraud in the 2020 U.S. elections this past November. To learn more about this case, and subsequent lawsuits filed against other individuals attached to the Former President's campaign, follow this link.
December 21, 2020: Voting Machine Companies Threaten Defamation Suits
Electronic voting machine companies Smartmatic and Dominion - both at the center of right-wing conspiracy theories that question the legitimacy of the 2020 U.S. elections - have recently threatened lawsuits against FOX, OAN, and Newsmax, demanding that these media outlets clear their names with respect to allegations of fraud. To learn more about these issues and prospective cases, follow this link.
November 16, 2020: Sixth Circuit Hands Down Ruling on Bennett v. Metropolitan Government of Nashville
Last month, the Sixth Circuit of the U.S. District Court of Appeals ruled on Bennett v. Metropolitan Government of Nashville, a free speech case relating to the firing of a government employee over a social-media comments that were racially charged and discriminatory. The Sixth Circuit ruled in favor of the city government, overturning the lower court's ruling that had initially ruled in favor of the city employee who had been fired. To learn more about this case and its implications, follow this link.
November 11, 2020: Supreme Court Tosses Out Case Against BLM Activist
Last week, the Supreme Court of the United States threw out a First Amendment case against Black Lives Matter activist, DeRay McKesson. McKesson, the organizer of a 2016 protest in Louisiana follow the death of Alton Sterling at the hands of police officers in Baton Rouge, LA. An officer who was injured during the protest had sued McKesson, arguing that McKesson was responsible for the injury through his calls to action in the wake of the death of Sterling. The case had been thrown out by a lower court, and reinstated by a circuit on the District Courts of Appeals. To read more about the case, follow this link.
September 14, 2020: Reviewing the Results of the 2020 Annenberg Center Constitution Day Civics Survey
The Annenberg Public Policy Center at the University of Pennsylvania recently released the results of their 2020 Constitution Day Civics Survey ahead of Constitution Day (9/17/2020). This political knowledge survey, among other items, looks at a representative sample of Americans' knowledge of First Amendment rights and liberties. To view the Center's results and analysis of the survey, follow this link.
August 30, 2020: Facial Recognition, The Internet, and The First Amendment
Clearview AI, a company involved with scraping pictures off the internet and using AI to sort and identify individuals has recently hired a prominent First Amendment attourney in order to mount a case to expand legal rights surrounding AI and the First Amendment. In order to learn more about Clearview and legal interests surrounding AI, follow this link.
August 13, 2020: Churches Sue Minnesota State Officials Over Mask Mandate
Today, several churches in the state of Minnesota joined a lawsuit against Governor Tim Walz, Attourney General Keith Ellison, and other Minnesota officials over the state's mask mandate in response to the COVID-19 global pandemic. The lawsuit argues that the mask mandate, as it pertains to in-person gatherings of people is overreaching and infringing upon individual rights. To learn more about this case and the way the state of Minnesota has responded to the COVID-19 pandemic, follow this link.
July 12, 2020: Internet Service Providers Sue State, Claim Web-Privacy Laws Violate Free Speech
Last week, internet service providers (ISPs) lost a key ruling in their bid to kill a privacy law imposed by the state of Maine. Claiming that the privacy law violates their First Amendment protections on free speech, these internet service providers argued that the state law is preempted by deregulatory actions taken by Congress and the Federal Communications Commission. This first blow, coming from a U.S. District Court judge, resulted in the denial of the ISPs' motion for judgment on the pleadings. U.S. District Court Judge Lance Walker criticized the plaintiffs' First Amendment argument, and granted the state of Maine's motion to dismiss claims that the State's law goes against federal law. To learn more about this case and the ways in which it relates to the freedom of speech, follow this link.
July 2, 2020: Recent SCOTUS Decision - Spinoza v. Montana
This week, the U.S. Supreme Court handed down a 5-4 decision on the case of Spinoza v. Montana, related to scholarship and grant funds dispersed to religious schools. The majority found that states must allow religious schools to participate in programs that provide scholarships to students attending private schools, a decision that opened the door to more public funding of religious education. To learn more about this case and the ways in which it relates to religious freedoms, follow this link.
June 21, 2020: LGBTQ Protections and Religious Institutions
Last week, the Supreme Court handed down a decision on both Bostock v. Clayton County, GA and Altitude Express Inc. v. Zarda, both dealing with the rights of gay and transgender workers. Using the Civil Rights Act of 1964, the Court ruled that discrimination against workers on the basis of gender identity and sexual orientation is prohibited. To learn more about how this recent ruling affects religious institutions, follow this link.
June 8, 2020: Tracking Violations of Press Freedoms in the Wake of the Floyd Protests
Over the last two weeks, citizens across all 50 states have organized protests against police brutality and the treatment of BIPOC individuals and communities. In the coverage of such protests - marred by police and military presence - many members of the media have been arrested and targeted without respect to their First Amendment protections. To learn more about violations of press freedoms that are protected under the First Amendment, check out this article here.
June 2, 2020: Knowing Your Rights as a Protester
In the wake of the killing of George Floyd by an officer in the Minneapolis Police Department, citizens across the U.S. have taken to the streets to protest police brutality and the treatment of Black lives in the U.S. From Minneapolis to Atlanta, massive groups of citizens have been gathering to make their voices heard and exercise their First Amendment right to protest - but what do these protections look like? To read more about your rights as a protestor under the First Amendment of the U.S. Constitution, check out this article that features commentary from law scholars here.
April 10, 2020: Civil Liberties, Rights, and State Restrictions in the Time of COVID-19
In the wake of the COVID-19 pandemic, many states throughout the U.S. have begun enforcing "stay at home" orders and requiring businesses and services that are not deemed "essential" to close. These restrictions imposed in many states have not just made life difficult for consumers and businesses - in some cases they have infringed upon religious liberties protected under the First Amendment and other civil rights like abortion rights.
You can read more about these issues across the United States here.
March 10, 2020: What's Happening in India? Religion and Citizenship in India Following the Citizenship Amendment Bill
Last December, India's Parliament passed the controversial Citizenship Amendment Bill which led to outrage from citizens and mass protests. "The law changes India’s naturalization process for acquiring citizenship, amending a law that previously prohibited "illegal immigrants" — those who enter the country without proper documentation or overstay their visas — from becoming Indian citizens. The 2019 amendment allows Hindus, Sikhs, Buddhists, Jains, Parsees and Christians who migrated to India from Afghanistan, Bangladesh or Pakistan to become citizens. It also allows them to file expedited citizenship claims after six years of residency, down from a residency requirement of 11 out of the past 14 years in the original law. The amendment leaves Muslims off the list of protected groups, however. Many political analysts and human rights experts argue that the government designed the law explicitly to exclude Muslim asylum seekers from acquiring refugee status in India and, eventually, citizenship" writes Suparna Chaudhry.
Read more about the policy and the protests here.
January 19, 2019: President Trump Issues New Guidance on Right to Pray in Public Schools
Last week, President Donald Trump issued a new guidance asserting a First Amendment right of students to pray in public schools across the United States. These guidelines were praised by Secretary of Education Betsy Devos and affirmed by the Office of Management and Budget who released a memo of outlining a forthcoming executive order from President Trump requiring federal agencies to establish grant-making processes that comply with First Amendment protections. Nine other federal agencies are also set to release proposed rules to ensure religious and non-religious organizations are treated equally by the government.
To read more about this story, follow the link here.
November 16, 2019: SCOTUS to Review Decisions Regarding the Constitutionality of the TCPA (Telephone Consumer Protection Act)
Recently, the U.S. Supreme Court has been called upon to review two interwoven Ninth Circuit decisions on the constitutionality of the TCPA (Telephone Consumer Protection Act). Facebook, Inc. and Charter Communications, Inc. are each asking the Court to rule that the TCPA’s prohibitions on calls made using artificial or prerecorded voices violate the First Amendment, as they are “content-based” restrictions on speech.
To read more about this story, follow the link here.
November 1, 2019: Local Event of Interest: Professor Helen Norton - The Government's Speech and the Constitution, 45th Annual Austin W. Scott Jr. Lecture
The 45th Annual Austin W. Scott Jr. Lecture will be taking in Wittemyer Courtroom at Wolf Law from 5:30-7:30 pm on Tuesday, December 3. Professor Helen Norton will be talking about her new book, “The Government’s Speech and the Constitution,” which addresses the First Amendment in many ways. Registration is free, RSVP at cu.law/ScottLecture. A brief description is attached below:
"When we discuss constitutional law, we usually focus on the constitutional rules that apply to what the government does. Far less clear are the constitutional rules that apply to what the government says. In this talk, Professor Helen Norton will discuss the uses and abuses of the government’s expressive powers through the lens of constitutional law." To register, follow the link here.
October 31, 2019: Kentucky Supreme Court Dismisses Suit Over Print Shop Owner's Refusal to Print LGBTQ Pride Shirt
The Kentucky Supreme Court, in a unanimous decision on Thursday, has upheld a lower court’s ruling that a Lexington print shop owner was within his rights to refuse to make t-shirts for a Lexington gay rights festival due to his religious beliefs. "While this result is no doubt disappointing to many interested in this case and its potential outcome, the fact that the wrong party filed the complaint makes the discrimination analysis almost impossible to conduct, including issues related to freedom of expression and religion," the justices wrote in the ruling. To read more about this recent decision, follow this link.
October 2, 2019: First Amendment Advocates Concerned After Recent Legal Defeats for Media Organizations
A string of recent legal setbacks for media organizations is bringing about concerns among First Amendment advocates who worry that it could signal an erosion of the deference press outlets have enjoyed for decades in cases challenging their reporting. To read more about the details of these cases and the specific concerns of these advocates, follow the link here.
September 6, 2019: ND Establishment Sues City, Argues Mural Ordinance Violates the First Amendment
Do cities have the right to establish and uphold laws prohibiting individuals from displaying murals on their property? This question is being taken up in court after bar owners in Mandan, North Dakota sued their town over its rules that prohibit the mural on the side of their building. To read more about this controversy, follow the link here.
August 2, 2019: AI and the First Amendment: Preparing Engineers for Tomorrow’s Big Questions
Does AI have the right to free speech under the First Amendment? New research from CU's Josh Rhoten addresses many of the problems related to free speech that AI and algorithm development brings to advancements in technology and the ways in which the engineers of tomorrow might be taught to address them. This original research was created in partnership with CU Boulder’s LeRoy Keller Center for the Study of the First Amendment as part of its mission to encourage the study of topics relating to the nature, meaning and contemporary standing of First Amendment rights and liberties. The full article can be found here.
July 23, 2019: Second Circuit Court of Appeals Rules Trump Violates First Amendment by Blocking Twitter Critics
Earlier this month, a panel of judges from the U.S. Court of Appeals for the Second Circuit unanimously ruled that President Trump violates the First Amendment by blocking users from his Twitter account. The judges rejected the argument that the @realDonaldTrump account is a “wholly private social media account”, noting that the White House itself has called the president’s personal account an official one and that Trump routinely uses the account to announce major policy and personnel moves. More information on this recent decision is available here.
July 3, 2019: Peace Cross on Public Land in Maryland Allowed to Stay Following Recent SCOTUS Decision
Last month, the U.S. Supreme Court ruled that a cross honoring soldiers who died in World War I could remain on state property in suburban Maryland. According to the Court, the cross did not violate the First Amendment’s ban on government establishment of religion. More information on this recent 7-2 decision is available here.
February 5, 2019: First Amendment Scholars Question Constitutionality of Anti-BDS State Laws Following Senate Bill
This week, the U.S. Senate passed a bill claiming that anti-BDS state laws, or laws allowing state governments to refuse to do business with companies that boycott Israel, are not preempted by federal law. Last month, a similar bill failed to pass the Senate and hotly divided Senate Democrats in the process. This Senate battle joins an ongoing debate on the constitutionality of such state laws. First Amendment legal scholars have recently filed an amicus curiae brief in the 9th Circuit Court arguing that such laws are clear violations of the right to free speech because they target particular types of speech. Others have replied that previous court rulings have permitted governments to make "value" decisions in their dealings with local organizations and businesses. More information on this controversy is available here.
February 1, 2019: Federal Judge Rules Florida Conversion Therapy Ban Violates First Amendment
A federal magistrate judge has partially blocked a ban on a Tampa sexual orientation conversion therapy ban, saying verbal counseling in favor of conversion therapy is protected by the First Amendment, while upholding the ban on shock therapy. The judge explained that Tampa offered no evidence of harm incurred on minors as a result of the verbal counseling portion of conversion therapy, while the law's challengers were able to sufficiently show a likelihood of success in arguing that their right to free speech had been violated by the law. A Florida state senator has introduced a bill to ban conversion therapy statewide. The issue appears to be headed for a federal showdown in the courts. More information on the judge's ruling is available here.
January 31, 2019: First Amendment Concerns Surround Potential FDA Restriction on Naming Almond Milk “Milk”
Citing the previous 11th Circuit Court's decision in Ocheesee Creamery LLC v. Putnam, which upheld a dairy producer's right to call skim milk "skim milk" on the basis of the First Amendment, some groups submitted arguments in favor of calling almond milk "milk" to the FDA's public comment period on the topic. The FDA has recently proposed a rule that would require soy, almond, and other nut "milk" producers to remove the term "milk" from all packaging. Meanwhile, the 9th Circuit Court and a district court in California have upheld nondairy "milk" producers' right to call their products "milk" as protected speech. Yet FDA Commissioner Scott Gottlieb has defended the rule as giving consumers better information. More information on the controversy is available here.
December 3, 2018: Supreme Court Hears Case on Police Power and Free Speech Rights
Today the Supreme Court hears arguments on whether lawsuits alleging retaliatory police arrest should be allowed when the target of arrest is claiming a First Amendment right to protection of free speech. The main issue in this case is whether the subject of an allegedy retaliatory arrest should be required to demonstrate that officers did not have probable cause to arrest the subject. The Court previously ruled on this in Lozman v. City of Rivera Beach last term (see discussion of that case below), in which opinion the Court affirmed that having a probable cause for arrest does not summarily override a person's First Amendment right to speak in a public forum. The present case involves the arrest of an Alaska man who was arrested after yelling at police officers but alleges he was deprived of his First Amendment right to criticize police officers. More details on the case are available here.
October 11, 2018: Masterpiece Cakeshop Owner Files Second Lawsuit Against Colorado Civil Rights Commission
Approximately one year before the Supreme Court issued its high-profile Masterpiece Cakeshop v. Colorado Civil Rights Commission decision, Jack Phillips of Masterpiece Cakeshop filed another lawsuit against the CCRC, which had again ruled against him for refusing to bake a cake celebrating a trangender person's transition. Phillips claims this refusal is just one of many refusals he has issued, including refusing to bake cakes celebrating gay marriage, marijuana use, or sexually explicit activities; and that the Supreme Court has already ruled in his favor on such refusals. The CCRC claims the prior case does not preclude future rulings against Phillips, and that the commission (now comprised of different members) found probable cause that Phillips engaged in discriminatory practices in this instance. This second lawsuit is currently on the docket for the District Court of the United States for the District of Colorado.
September 12, 2018: Federal Court of Appeals Rules Against Oregon Police Department's Restriction on Office Speech
The 9th US Circuit Court of Appeals ruled last week that a Springfield, Oregon police department's firing of an officer for refusing to sign an agreement restricting her from saying or writing negative things about the department violated her First Amendment right to free speech. The Court declined to comment on the constitutionality of the agreement itself; but one judge commented that the agreement represented "overt viewpoint discrimination," signalling that if the agreement were to be appealed in the future, it would almost certainly be struck down. More information on the case is available here.
September 5, 2018: Senate Select Committee Considers Social Media Security and Bias
On Wednesday, the Senate Select Committee held a hearing on social media and election security. The hearing comes as talks surrounding the proposed Senate bill, the Social Media Privacy Protection and Consumer Rights Act of 2018, come to a head. Chief officers from Twitter, Facebook, and Google attended and testified on the platforms' ranking and banning policies affecting which users see what content, though the stated purpose of the hearing was national security. Both Republicans and Democrats in the Senate have voiced concerns about Russian interference on social media platforms and the need for regulation which could combat such interference in the future. The committee chair, Sen. Richard Burr (R-NC), has noted the difficulty of legislation curbing the freedom of speech, but the bill mostly places restrictions and regulations on platforms rather than consumers.
August 18, 2018: Satanic Temple Group Leads First Amendment Rally Against Ten Commandments Monument in Arkansas
A First Amendment rally in August protesting the display of a Ten Commandments monument at the Arkansas State Capitol featured the statue of the occult figure Baphomet. The ralliers, led by the Satanic Temple group but including atheists and Christians, argued that the Ten Commandments monument violates the Establishment Clause, and that it should be removed or other religious imagery should be allowed the same public display. The Supreme Court has generally ruled against such arguments, most recently in the unanimous decision of Pleasant Grove City v. Summum in 2009.
July 6, 2018: Wisconsin Supreme Court Reinstates Professor in Academic Freedom Case
On Friday, the Wisconsin Supreme Court ruled in a 4-2 decision that Professor John McAdams of Marquette University was wrongly suspended for criticizing a graduate student by name publicly on his blog. McAdams, a political science professor, had chastised the graduate student for not allowing an undergraduate to oppose same-sex marriage in the classroom. After the blog was published and media outlets subsequently picked up on the story, the graduate student received threatening messages. Marquette University had suspended McAdams without pay for the last several years, and the ruling forces his reinstatement. In a statement following the ruling, the Marquette administration maintained that the case was about professor conduct and not free speech or academic freedom.
June 27, 2018: Supreme Court Strikes Down Precedent Allowing Union Agency Fees
In another historic 5-4 decision issued today, the Supreme Court struck down the precedent established by Abood v. Detroit Board of Education (1977), which permitted unions to collect agency ("fair-share") fees from non-members. Justice Alito stated in the opinion of the Court that "this arrangement violates the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern." The ruling is expected to have a profound effect on the funding of public unions. In her dissent, Justice Kagan wrote: "The First Amendment was meant for better things. It was meant not to undermine but to protect democratic governance - including over the role of public-sector unions." More information about the case is available here.
June 26, 2018: Supreme Court Upholds President Trump's "Travel Ban"
Today the Supreme Court upheld with a 5-4 vote President Trump's September 2017 order restricting immigration from eight predominantly Muslim countries. Among other arguments, the Court dismissed claims that the ban violated the Establishment Clause. In his opinion for the court, Chief Justice Roberts surveyed briefly a history of presidents supporting religious liberty and their failings in doing so. Despite this aside, which some experts see as an implicit criticism of the ban, Roberts wrote that the ban did not violate the Establishment Clause because 1) the ban was neutral toward religion on its face, and 2) the national security concerns served as an overriding and legitimate governmental purpose. More information on the case is available here.
June 18, 2018: Supreme Court Allows Free Speech Lawsuit to Proceed
The Supreme Court on Monday ruled that a man arrested while speaking at a city council meeting in 2006 may continue his case claiming First Amendment retaliatory arrest. The Court ruled 8-1 in favor of Fane Lozman, who at the city council meeting made several comments alluding to corruption, was arrested and removed from the room within seconds of speaking during the meeting's public comment period (a video of the arrest is available here). Lozman was subsequently charged with disorderly conduct and resisting arrest. After the state's attorney dropped these charges, Lozman filed a lawsuit against the city alleging retaliatory arrest. In the case's trial, the state introduced other reasons it may have had probable cause to arrest Lozman.
In its opinion, the Court affirmed that having a probable cause for arrest does not summarily override a person's First Amendment right to speak in a public forum; and in this case, the Court found that the facts favored Lozman's position in the case. As a result of the ruling, Lozman's case will be remanded to a lower court and argued again. More information on the case is available here.
June 14, 2018: Supreme Court Strikes Down Minnesota Law Banning Political Wear in Polling Places
In a 7-2 decision issued by Chief Justice John Roberts, the Supreme Court ruled that a Minnesota law prohibiting the wearing of political messages in polling locations. The case was brought by a voter who was told to remove a button saying "Please I.D. Me" and a shirt saying "Don't Tread on Me" at a polling place. The Court maintained that Minnesota's law prohibiting such apparel was too broad and not "lucid" like current statutes in Texas and California which prohibit specific support for a candidates or measures on the ballot. Justice Sotomayor's dissent focused primarily on procedural issues, saying that if the Minnesota Supreme Court had issued a "definitive interpretation" of the law, it would not need to be struck down. More information on Minnesota Voters Alliance v. Mansky is available here.
June 4, 2018: Supreme Court Rules In Favor of Baker in Masterpiece Cakeshop v. Colorado Civil Rights Commission
In a 7-2 decision issued on Monday, the Supreme Court ruled that the Colorado Civil Rights Commission (CCRC) violated the free exercise right of the baker who refused to make a cake for a same-sex wedding in 2012. The Court's opinion, written by Justice Kennedy, ruled that the CCRC did not treat the baker's religious objection with due "neutral and respectful consideration," while Justice Ginsberg's dissent disagreed that the CCRC's behavior constituted bias. Analysts have noted that the case might have resulted in a reasonable accommodations compromise if the CCRC had not operated with "hostility" toward the defendant's religion. A further analysis of the case is available here.
May 23, 2018: Federal District Court Judge Rules President Trump Twitter-Blocking Opponents Unconstitutional
New York District Court Judge Naomi Reice Buchwald ruled this week that President Trump's blocking of Twitter users with differing views was unconstitutional. The opinion of the court explains that "[t]he viewpoint-based exclusion of the individual plaintiffs from [a] designated public forum is proscribed by the First Amendment and cannot be justified by the President's personal First Amendment interests." A Department of Justice representative has registered the government's disagreement with the ruling, and the president's legal team is considering possible appeals. Potential precedential consequences set by this case are already apparent: on the heels of the decision, PETA has filed a lawsuit against Texas A&M University for deleting comments on the university's official Facebook page. More information about the Trump case is available here.
March 19, 2018: Supreme Court to Hear Oral Arguments on Abortion Information Case
This week, the Supreme Court will hear oral arguments on NIFLA v. Becerra, considering whether states can compel reproductive health nonprofits to provide patients with information about abortions. The challenge comes from several California crisis pregnancy centers (CPCs) who state that the California FACT Act which requires them to give low-cost abortion information to their clients violates their First Amendment rights. The State of California argues that CPCs should not be able to provide women with inaccurate or misleading information about their reproductive health. Interestingly, the federal government has filed an amicus curiae brief in which it agrees in part with the CPCs and in part with the State of California. A review of the federal government's brief and the arguments of each side is available here.
February 23, 2018: Supreme Court to Hear Oral Arguments on Public Union Fees
Next week, the Supreme Court will hear oral arguments on Janus v. American Federation of State, County, and Municipal Employees, Council 31, considering whether compelling public employees to pay mandatory public union fees violates their First Amendment rights. If public employee Mark Janus is successful, this would overturn the reasoning of the Court in Abood v. Detroit Board of Education in 1977. Last time the Court considered the case, just after Justice Scalia's passing, they could not resolve the issue and deadlocked at 4-4. Nowm with Trump appointee Justice Gorsuch on the Court, some scholars predict the mandatory union fees may be struck down. A review of the arguments is available here.
February 21, 2018: Texas High School Superintendent Threatens to Suspend Students Excercising Protest Rights
The superintendent of Needville ISD near Houston threatened to suspend students engaging in gun law protests during school operating hours. Professor Heidi Li Feldman (of Georgetown Law) labeled the threat "a quintessential First Amendment violation," while some lawyers have offered to take up students' cases if they are suspended. As school protests like these continue around the country in response to the Parkland shooting in Florida, Newseum has compiled a helpful FAQ for school students and parents of schoolchildren to understand where and when students' protest rights are protected. That FAQ is accessible here.
October 6, 2017: Attorney General Sessions Issues New Guidance on Religious Objections to Government Regulations
This week Jeff Sessions issued a memo to the Department of Justice emphasizing that the right of religious expression applies even when in conflict with public policy. The guidance has proved highly contentious among those who fear employment discrimination, while others have argued that it is "a significant commitment to a robust understanding of religious freedom." You can read about the memo and discussion on its guidance here.
October 3, 2017: Supreme Court Set to Consider the "Cake Case" This Term
The Supreme Court is set to hear arguments on Masterpiece Cakeshop v. Colorado Civil Rights Commission during its current term, which began October 2nd. The Court will consider whether Colorado's public accommodations law - which compels the petitioner to create an expression that he violates his religious beliefs on marriage - violates the First Amendment's free speech or free exercise clauses. An explainer on the basic facts and some predictions for the case, composed by the Religion News Service, can be found here.
October 2, 2017: WAMU 88.5 Publishes Free Speech Quiz
WAMU 88.5, the member-supported, professionally-staffed radio station licensed to American University in Washington, D.C., has released a quiz to gauge how well you know First Amendment protections for free speech. The quiz covers historical Supreme Court cases on free speech. You can take the quiz here.
September 28, 2017: Washington University Professor of Law: NFL Protests Not Protected By First Amendment
Over the first few weeks of the 2017 NFL season, players have protested racial inequality by refusing to stand or be present during the national anthem. Prof. Greg Magarian, professor of law at Washington University in St. Louis, explains why the players' protests are not protected by the First Amendment. You can read his comments here.