First Amendment Lawyer Blog

Does someone who wants to be a judge have a First Amendment right to hit people up for campaign money?

Thankfully, the U. S. Supreme Court says “no,” in a 5-4 decision filed April 29. The Court’s split decision will hopefully keep the most unseemly aspects of money-raising out of judicial races in a way that its controversial Citizens United decision doesn’t for other campaigns.

Chief Justice John Roberts’ decision focused on the unique aspects of judging, reasoning, “Judges are not politicians, even when they come to the bench by way of the ballot. And a State’s decision to elect its judiciary does not compel it to treat judicial candidates like campaigners for political office. A State may assure its people that judges will apply the law without fear or favor — and without having personally asked anyone for money.”

A Sacramento man’s display of a swastika on his front lawn has triggered a hate speech debate in California.

State Senator Marty Block (D-San Diego) was joined by a group of veterans, community leaders and fellow legislators February 26 in Sacramento urging the homeowner to remove the swastika from his Sacramento home. The display takes up a large portion of the front of the home.

The calls for removal are well-meaning, but the First Amendment would surely prevent the legislators from forcing the homeowner to remove the hateful symbol.

The U. S. Supreme Court has taken a step in the right direction for public employee whistleblowers.

The Court’s June 19 decision in Lane v. Franks reiterates that citizens don’t surrender First Amendment rights by accepting public employment and that First Amendment protection of a public employee’s speech requires balancing “the interests of the employee, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”

Lane is an example of the aphorism that while bad facts make bad law, good facts make good law.; Lane headed a statewise program for underprivileged youth in Alabama. The program had financial difficulties. Lane fired a well-connected Alabama State Representative who vowed revenge. That employee was later indicted for mail fraud and Lane testified at her trial.

The narrow question in the case was whether the First Amendment protects a public employee who provides truthful sworn testimony, compelled by subpoena, outside the course of his ordinary job reasponsibilities. The Supreme Court answered that question “yes.”
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Will Congress step in where the U. S. Supreme Court decided not to tread?
That’s the question facing the news media and advocates of the so-called Free Flow of Information Act now that the U. S. Supreme Court in early June decided not to hear a case involving New York Times reporter James Risen. The Fourth Circuit Court of Appeals last year ruled, “There is no First Amendment testimonial privilege, absolute or qualified, that protects a reporter from being compelled to testify by the prosecution or the defense in criminal proceedings about criminal conduct that the reporter personally witnessed or participated in, absent a showing of bad faith, harassment, or other such non-legitimate motive, even though the reporter promised confidentiality to his source.” (U. S. v. Sterling, 724 F.3d 482, 492 (4th Cir. 2013).) The Supreme Court’s June decision not to hear the case exposes Risen to potential jail time for not identifying a source.

Risen is the author of a book, “State of War: The Secret History of the CIA and the Bush Administration,” that detailed a CIA plan to sabotage Iran’s nuclear program. Prosecutors contend that a former CIA agent, Jeffrey Sterling, leaked information to Risen which was used in the book.

The Fourth Circuit’s decision rejects a First Amendment privilege for reporters not to testify in criminal cases, and also rejects a “qualified, federal common-law reporter’s privilege protecting confidential sources.” But the Court did recognize a qualified reporter’s privilege in civil cases, saying that the Fourth Circuit has “continued to recognize the important distinction between enforcing subpoenas issued to reporters in criminal proceedings and enforcing subpoenas issued to reporters in civil litigation. Subpoenas in criminal cases are driven by the quite different and compelling public interest in effective criminal investigation and prosecution, an interest that simply is not present in civil cases.”

The Court rejected a privilege for Risen, holding, “he can provide the only first-hand account of the commission of a most serious crime indicted by the grand jury — the illegal disclosure of classified, national security information by one who was entrusted by our government to protect national security, but who is charged with having endangered it instead.”

The U.S. Supreme Court’s decision not to hear the case is the latest in a number of decisions by the Supreme Court not to revisit its 1972 decision in Branzburg v. Hayes, 408 U. S. 665. For decades, many lower courts had relied upon Justice Lewis Powell’s concurring opinion in Branzburg to recognize some form of reporter’s privilege. Justice Powell’s concurring opinion stated, “The Court does not hold that newsmen, subpoenaed to testify before a grand jury, are without constitutional rights with respect to the gathering of news or in safeguarding their sources.”
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What’s the difference between a blogger and an old-fashioned ink-stained newspaper reporter?

Not much, according to a January 17 court ruling from the federal Ninth Circuit Court of Appeals.

Ruling on what it called a “question of first impression” on the First Amendment protections afforded a blogger sued for defamation, the Court in Obsidian Finance Group v. Cox held that “liability for a defamatory blog post involving a matter of public concern cannot be imposed without proof of fault and actual damages.”

The Court’s ruling was not surprising. Although the Ninth Circuit had not directly addressed whether First Amendment defamation rules “apply equally to both the institutional press and individual speakers,” the Court observed that “every other circuit to consider the issue has held that the First Amendment defamation rules…apply equally to the institutional press and individual speakers.” Other courts have cited the difficulty of defining who belongs to the “media.”

The Court in Obsidian concluded, “The protections of the First Amendment do not turn on whether the defendant was a trained journalist, formally affiliated with traditional news entities, engaged in conflict-of-interest disclosure, went beyond just assembling others’ writings, or tried to get both sides of a story.” It said a First Amendment distinction between the institutional press and other speakers is “unworkable.”
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The Supreme Court’s ruling upholding President Obama’s Affordable Care Act wasn’t the only split decision it handed down on June 28.

The Court also made a major First Amendment ruling, striking down the “Stolen Valor Act of 2005,” which makes it a crime to lie about having received the Congressional Medal of Honor. Justice Anthony Kennedy’s plurality opinion stated, “Fundamental constitutional principles require that laws enacted to honor the brave must be consistent with the precepts of the Constitution for which they fought….Statutes suppressing or restricting speech must be judged by the sometimes inconvenient principles of the First Amendment.”

Beyond the law at issue, the Court’s plurality opinion observed, “The Court has never endorsed the categorical rule the Government advances: that false statements receive no First Amendment protection. Our prior decisions have not confronted a measure, like the Stolen Valor Act, that targets falsity and nothing more.”

Does the Court’s decision mean that there is now a license to commit fraud and perjury? No. The plurality opinion — written by Justice Kennedy, and joined by Chief Justice John Roberts and Justices Ruth Bader Ginsburg and Sonia Sotomayor — listed fraud as a category of speech which has long been restricted, and took pains to say that perjury statutes are constitutional. “Sworn testimony is quite distinct from lies not spoken under oath and simply intended to puff up oneself,” Justice Kennedy’s opinion declared.

The Stolen Valor case, United States v. Alvarez, produced three separate opinions. Justice Kennedy’s plurality opinion applied strict scrutiny to the law, saying, “When content-based speech is in question…exacting scrutiny is required,” and holding that the law flunked that test because, “The Government has not shown, and cannot show, why counterspeech would not suffice to achieve its interest. The facts of this case indicate that the dynamics of free speech, of counterspeech, of refutation, can overcome the lie.” Justice Kennedy pointed out that Xavier Alvarez, the man who lied about having received a Congressional Medal of Honor, was perceived as a phony even before the FBI began investigating his false statements.
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The U. S. Supreme Court will soon hear a case which could do major damage to First Amendment free speech protections.

The case, U. S. v. Alvarez, involves the “Stolen Valor Act,” a 2005 law which makes it a crime to lie about having received a military medal of honor. The federal 9th Circuit Court of Appeals found the law unconstitutional but the Supreme Court on October 17 agreed to hear the case.

The 9th Circuit had held, “if the Act is constitutional…then there would be no constitutional bar to criminalizing lying about one’s height, weight, age or financial status on Match.com or Facebook, or falsely representing to one’s mother that one does not smoke, drink alcoholic beverages, is a virgin, or has not exceeded the speed limit while driving on the freeway. The sad fact is, most people lie about some aspect of their lives from time to time.” The ever-colorful Chief Judge Alex Kozinski commented that talking about oneself is “precisely when people are most likely to exaggerate, obfuscate, embellish, omit key facts or tell tell tales. Self-expression that risks prison if it strays from the monotonous reporting of strictly accurate facts about oneself is no expression at all.”

But 9th Circuit Judge Diarmuid O’Scannlain, who dissented from the court’s denial of rehearing, saw it differently, saying, “restrictions upon false speech do not receive strict scrutiny.” The 9th Circuit majority, however, held, “regulations of false factual speech must, like other content-based speech restrictions, be subjected to strict scrutiny unless the statute is narrowly crafted to target the type of false factual speech previously held proscribable because it is not protected by the First Amendment.”

No one argues that falsely claiming to have received a Medal of Honor is the highest and best form of free speech. But if the Supreme Court upholds the Stolen Valor Act it will likely expand the kinds of speech which are categorically exempted from First Amendment protection. This would create a slippery slope under which many forms of political speech might be subject to criminal sanctions if found to be untrue. After all, there is sometimes a fine line between the embellishments and half-truths which pervade political discourse, and the flat-out lies at issue in the Alvarez case. (Xavier Alvarez, a member of a water board in southern California, said in 2007 that he had been wounded as a Marine and had in 1987 received a Medal of Honor. He had never served in the military. The government prosecuted him and he conditionally pled guilty to violating the Stolen Valor Act, while reserving his rights to challenge its constitutionality. The Act imposes a penalty of up to a year in prison plus a fine; Alvarez was sentenced to three years probation and a $5,000 fine.)

Consider the issue of “job creation,” sure to be front and center in the 2012 elections. In the recent campaign for San Francisco Mayor, one candidate said he had “created” thousands of jobs. His “creation”? He voted for tax breaks for companies located downtown. On the Presidential level, Mitt Romney likes to talk about his record of “job creation.” If he is lying about his record — his venture capital firms laid people off after leveaged buyouts — should he go to jail? The point is, criminalizing lies is likely to pose serious threats to free speech.
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