First Amendment Newsflash 6/11-25

Welcome to First Amendment Newsflash: the First Amendment Law Review’s new bi-weekly roundup of the latest in free expression and religious freedom news and commentary. Check here every other Sunday for a new edition! Need First Amendment news in the meantime? Follow FALR on Twitter and Facebook for regular updates.

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Supreme Court News

In Matal v. Tam (formerly Lee v. Tam), the Supreme Court held 8-0 that the disparagement clause of the Lanham Act violates the First Amendment. The Court found that trademarks do not constitute government speech. Four justices applied the Central Hudson test, while the other four justices argued that strict scrutiny was the appropriate standard. The decision is seen as reaffirming that there is no hate speech exception to the First Amendment. Read The Washington Post’s analysis here.

In Packingham v. North Carolina, the Supreme Court held 8-0 that a N.C. statute preventing registered sex offenders from using social media violates the First Amendment. The majority opinion proclaims the internet to be “the most important place[] . . . for the exchange of views.” Read SCOTUSblog’s analysis here.

Cert was denied in a case from the Second Circuit challenging mass arrests of protesters (Garcia v. Bloomberg), leaving a circuit split on the issue.

The government filed its opposition brief in Elonis II. At issue in this case, back up on cert from the Third Circuit, is whether the trial court’s omission of the mens rea element from jury instructions was harmless error. Read Elonis’ brief here. For a refresher on Elonis I, check out FALR blog posts here and here.

 

Federal Legislative News

The Senate Judiciary Committee held a hearing to discuss “the assault on the First Amendment on college campuses.” The Chronicle of Higher Education has four takeaways here.

Montana Senator Steve Daines introduced a bill to amend the Constitution to allow for legislation that prohibits flag desecration.

 

Other Court News

A Massachusetts court found a young woman who encouraged her friend to commit suicide guilty of involuntary manslaughter. Many commentators worry this conviction runs afoul of the First Amendment.

A student expelled from Michigan Technological Institute for posting, “Gonna shoot all black people …… a smile tomorrow” on Yik Yak, settled his lawsuit against the university.

In a panel re-hearing in Gerlich v. Leath, the Eighth Circuit reaffirmed that Iowa State University violated students’ First Amendment rights by precluding the ISU NORML chapter from using ISU’s trademarks.

The Ninth Circuit heard oral arguments in Kennedy v. Bremerton School District, the case of a high school football coach’s pre-game prayers. This case pits establishment issues against free exercise and free expression concerns. For analysis on this issue generally, check out pg. 381 of the Spring 2017 issue of FALR.

In another case related to pre-game prayer, a Florida Christian school has appealed a federal court decision that upheld the Florida High School Athletic Association’s decision to deny the school from broadcasting a prayer before a football championship game in 2015.

Former New York gubernatorial candidate Carl Paladino filed a First Amendment suit against members of the Buffalo Board of Education who are trying to remove him from the board. Calls for removal point to Paladino allegedly disclosing confidential information, but came after he made racist statements about the Obamas.

The New Hampshire ACLU has filed an amicus brief in a case alleging that Farmington, N.H.’s social media policy violates town employees’ First Amendment rights.

A federal judge ruled that a cross on display in a public park in Pensacola, Fla. violates the establishment clause.

The Fifth Circuit ruled that plaintiffs challenging the Mississippi “Protecting Freedom of Conscience from Government Discrimination Act” lacked standing, allowing the legislation to go into effect for the first time. The law allows businesses to refuse wedding services based on sincerely held religious beliefs in three areas: that marriage is between a man and a woman, that people should not engage in premarital sex, and that gender is set at birth.

 

State Legislative News

The Wisconsin State Assembly passed a Campus Free Speech Act, advancing it to the state senate. Similar laws have passed in Utah, Colorado, Virginia, Tennessee, and Louisiana (awaiting the governor’s signature), and four other states are currently considering similar measures. The bills have been controversial among free speech advocates, with some lauding their potential to allow more campus free speech and others expressing concern that their disciplinary provisions will chill counter-protests.

The Texas governor signed the Freedom to Serve Children Act, which allows child welfare providers in the state to cite sincerely held religious beliefs to deny adoptions and other services to parents and children. This law follows a line of similar legislation, including RFRA, that have caused debate about balancing the right to free exercise with other civil rights issues.

 

Policy & Commentary

PBS Newshour did a segment on the use of surveillance technology in schools, exploring the balance between civil liberties like free speech and schools’ need to maintain safety for students.

Netflix released “Nobody Speak: Trials of the Free Press,” a documentary about the Hulk Hogan case against Gawker.

 

That’s it for your First Amendment Newsflash June 11-25. See you again on July 9!

What’s That Sign Say? : A Brief Examination of the Four Opinions in Reed v. Town of Gilbert

RoadsignsBy Emily Jessup; Staff Member (Vol. 15)

Imagine you’re driving around town, when something catches your eye. You slow down, and look. There, right in front of you, spray painted in giant letters on the side of a house is this: “SCREWED BY THE TOWN OF CARY.” Huh? Why hasn’t the Town done anything about this? Well, they tried to do something and consequently, the Town of Cary found themselves in Court battling over whether their sign ordinance, which prohibited signs of that size, violated the First Amendment. Although the Town’s ordinance was eventually upheld as a reasonable restriction on speech, and thus not contrary to the First Amendment, the case went all the way to the Fourth Circuit Court of Appeals for a final decision. Continue reading

The Future of Cyberbullying Legislation in North Carolina

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By Hanna Fox; Staff Member (Vol. 15)

Young people have an unprecedented access to technology, which grants them abundant access to the world around them, as well as to one another constantly.  Technology’s increased prevalence is relevant in children’s education, entertainment, and social interactions. Though children experience many benefits from the increased use of technology, that same surge has created a new monster: cyberbullying. Continue reading

The Teacher Followed Me Home: Bell and a School’s Control of Student Speech Outside the Classroom

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By Kirstin Vinal; Staff Member (Vol. 15)

Where does a student’s speech stop being under control of their school? Could it be when they are 500 feet away from school property? Or when they are home? In 2015, the Fifth Circuit Court of Appeals ruled in Bell v. Itawamba County School Board that speech outside of school grounds and in a student’s home is still subject to school regulation. Continue reading

Exposed: How Mugshots Expanded Government Secrecy

Lee Blog Picture

By Amber Lee; Staff Member (Vol. 15)

Despite increased calls for government transparency, the Sixth Circuit gave the federal government the precedent needed to further withhold information from the public.  The Sixth Circuit holding in Free Press II states that an individuals interests in avoiding embarrassment or humiliation outweighs the public’s interest in knowing information.  Continue reading

Fraud, A Weak Copyright Claim, and What Might Have Been: A Brief Examination of Garcia v. Google, Inc.

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By Jennifer Davis; Staff Member (Vol. 15)

Cindy Got “Bamboozled”

 When Cindy Garcia responded to a casting call for a film titled Desert Warrior, she did not object to delivering two innocuous seeming lines while “sounding concerned.” She probably would not have objected when in 2012, the director Mark Youssef, translated the film into Arabic, and perhaps she would not even have objected when Youssef changed the name of the film to The Innocence of Muslims. Continue reading