Brummer v. Wey: When Does an Injunction Go Too Far?

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By Devin Gustafson; Staff Member (Vol. 16)

Injunctions have long been a tool at the court’s disposal to stop harmful behavior. Judges use injunctions to prevent injustice and the possibility of irreparable harm, while balancing the likelihood of harming the public interest. A conceivable violation of the First Amendment, and an infringement on the rights of citizens, is certainly of public interest. A recent case granting an injunction in New York provides a potentially frightening example of when the scale tips the wrong way toward a constitutional violation. In December 2014, Christopher Brummer, a professor at Georgetown University Law Center, and a member of the National Adjudicatory Council for Financial Industry Regulatory Authority (FINRA), participated in a decision to permanently ban two stockbrokers from any FINRA-related firm.

About a month later, Benjamin Wey, who was upset by the FINRA ban but otherwise uninvolved in the decision, began posting about Brummer on the website, The Blot. The Blot is a website that combines journalism with unedited and opinionated content from readers. Wey is a publisher and frequent contributor on The Blot and has been convicted of sexual harassment, conduct which involved some defamatory posts on the website.  Wey posted articles calling Brummer a “racist,” an “Uncle Tom,” accusing him of having an affair with a married woman, and implicating him in fraudulent behavior.  Brummer, believing these statements to be defamatory and damaging to his reputation, sued Wey on April 22, 2015. Brummer further argued that Wey was inciting violence by posting pictures of Brummer next to lynching victims, and that Brummer felt threatened by Wey’s posts.

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Protecting Children from Sexual Abuse, or Suppressing Free Speech: Packingham v. North Carolina

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By Joscelyn Solomon; Staff Member (Vol. 16)

Imagine this: you check your 13-year-old daughter’s Facebook account, and you notice that she has received messages from a boy named John Doe. According to his Facebook page, the boy is 13 years old and attends middle school in a neighboring county. You continue to read through the messages, and you see that the boy has invited your daughter to the park after school to engage in sexual activities. You message him back, pretending to be your daughter, and you tell him that you will be there to meet him the next day. He tells you what he will be wearing so that you can easily identify him. One day later, you go to the address that John provided to discover a man who looks to be in his mid-thirties sitting alone on a bench. He is dressed in the blue jeans and UNC sweatshirt that John said that he’d be wearing. You call the police, and they meet you at the scene. “John” is later apprehended, and it is revealed that he is a registered sex offender who has pleaded guilty to taking indecent liberties with a child. His name is not John Doe, and it is later disclosed that “John” planned to kidnap and sexually abuse your daughter.

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First Amendment Newsflash 10/2-10/15

Welcome to First Amendment Newsflash, the First Amendment Law Review’s 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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The Supreme Court is back in session! Stay tuned!

Court News

A Texas high school senior is suing the Cy-Fair school district after claiming she was suspended from school for not standing for the Pledge of Allegiance.

The Reporters Committee for Freedom of the Press and a coalition of 20 media organizations filed an amicus brief asking the 9th Circuit to rehear a case, after the 9th Circuit allowed the government to prohibit wire or electronic communication service providers, like social media companies, from disclosing information about National Security Letters they receive requesting information about subscribers.

A federal judge ruled that the local transit authority violated the First Amendment when it refused to allow the union representing bus drivers to buy advertisements on buses in Spokane, Washington.

A federal judge ruled that an income tax exemption for housing for members of the clergy violates the First Amendment Establishment Clause because it benefits religious leaders and no one else.

A Texas judge ordered a former lawyer to pay a local media company’s legal fees arising from a defamation lawsuit under provisions of a state law enacted to protect First Amendment rights by discouraging frivolous lawsuits.

In newly filed lawsuits on behalf of the city of Charlottesville, local businesses and neighborhood associations accuse the organizers of the August “Unite the Right” rally, as well as private militia groups and their leaders, of violating Virginia law by organizing and acting as paramilitary units.

Two federal district courts ruled that the First Amendment does not allow the Food and Drug Administration (FDA) to prevent manufacturers from providing truthful information about their products to doctors.

The California Attorney General, the Washington Attorney General, and the ACLU filed suits alleging that the Trump administration’s rules widening the range of employers and insurers that can invoke religious or moral beliefs to avoid the Affordable Care Act requirement that contraceptives be covered by insurance violates the First Amendment by favoring certain religious views.

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President Trump Promised to “Totally Destroy” the Johnson Amendment: Did He?

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By Trey Bright; Staff Member (Vol. 16)

On February 2, 2017, President of the United States, Donald J. Trump, delivered a speech at the National Prayer Breakfast in Washington, D.C. in which he doubled down on the GOP platform’s commitment to expanding the First Amendment rights of houses of worship. President Trump assured the audience of religious leaders that he would make good on his campaign promise to “totally destroy” the Johnson amendment, a provision of the U.S. tax code, which allows “our representatives of faith to speak freely and without fear of retribution.”

What is the Johnson Amendment?

Following President Trump’s speech, The New York Times  described the Johnson Amendment as:

[O]ne of the brightest lines in the legal separation between religion and politics. Under the provision, which was made in 1954, tax-exempt entities like churches and charitable organizations are unable to directly or indirectly participate in any political campaign on behalf of, or in opposition to, any candidate. Specifically, ministers are restricted from endorsing or opposing candidates from the pulpit. If they do, they risk losing their tax-exempt status.

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First Amendment Newsflash 9/18-10/1

Welcome to First Amendment Newsflash, the First Amendment Law Review’s 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.



Court News

A federal magistrate judge ruled that a homeless encampment in Chicago did not qualify as a First Amendment-protected statement.

A panel of the 9th Circuit asked for amicus briefs considering whether a federal law criminalizing encouraging or inducing illegal immigration violates the First Amendment.

The 9th Circuit granted a preliminary injunction against San Francisco’s ordinance requiring health warnings on sugary drinks, such as pop.

A school lunch aide accused of illegally sexting a student has filed a writ of certiorari with the Supreme Court, arguing that the statute under which she was charged is unconstitutionally broad.

A federal judge dismissed two videographers’ religious freedom lawsuit challenging the Minnesota Human Rights Act, which barred the videographers from denying services for same-sex weddings.

HBO has asked a West Virginia state court to dismiss coal baron Robert Murray’s defamation lawsuit involving the John Oliver show.

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FALR’s ‘Distorting the Truth’ Symposium to Bring Together Foremost Scholars for Interdisciplinary Look at Fake News


By: Lindsie Trego, Symposium Editor (Vol. 16)

Only 38 days separate us from FALR’s 2017 Symposium: “Distorting the Truth: ‘Fake News’ & Free Speech.” As co-symposium editor, I wanted to take this opportunity to talk a little more about what we at FALR have planned for the symposium.

Fake news is a ubiquitous topic in today’s political and cultural environment. A quick Google search for the term reveals more than 8 million results. But what does “fake news” mean? What impact does it have on our culture? Does the law have a role to play?

When my co-editor John and I were thinking through how we wanted the symposium to fit into this conversation, we knew we wanted to focus on the law, but we also wanted to recognize the interdisciplinary nature of the topic, as it certainly hasn’t only dominated the legal news. Symposia often do the important work of bringing together foremost scholars to impact how the legal community thinks about an issue. But in the best case scenario, legal scholars, social scientists, and professionals converge to inform each other and impact how one another think about an issue.

Because fake news isn’t just a legal issue, “Distorting the Truth” will bring together eminent legal scholars such as Richard Hasen from UC Irvine and Helen Norton from University of Colorado; social scientists such as Deen Freelon from UNC and Emily Thorson from Syracuse; and practitioners such as Angie Holan from PolitiFact and Ashley Messenger from NPR.

The diversity of our panelists is sure to foster conversations that will examine the law while also considering broader contexts, better informing the symposium as a whole. We are so excited to see the lively debate that is sure to ensue!

Over the next few weeks, we will feature each of our speakers on Twitter and Facebook to give you a glimpse of what to expect from the symposium. Be sure to follow us to keep up, and check out the full list of speakers here.

You only have 30 days left to purchase in-person tickets for the symposium, which include lunch catered by the Carolina Club! And there are only 36 days left to purchase tickets for the live webcast of the symposium! Grab them while they’re here!


First Amendment Newsflash 9/4-9/17

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.



Court News

Michigan State University has been sued in federal court on First Amendment grounds for denying rental space for Richard Spencer to speak.

An Ohio man convicted of failing to tell his sexual partner that he is HIV-positive is arguing before the Ohio Supreme Court that the state law requiring HIV disclosure violates his First Amendment rights.

Alabama Supreme Court Justice Tom Parker argued in federal court that some restrictions on judges’ speech violate the First Amendment.

Three Texas churches have sued FEMA for allegedly discriminating based on religion in its provision of disaster relief.

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