Free Speech Review: 22 Significant, Silly, or Otherwise Noteworthy First Amendment Cases From 2014
What do rap lyrics, ultrasounds, giant rats, condoms, campaign donations, and Game of Thrones merchandise have in common? In 2014, all have been the subject of First Amendment controversy. I think it's safe to say that this has been an interesting year for free speech.
That this is the sort of banal statement one could make almost every year doesn't make it any less true for 2014, and perhaps it's been even more true than usual this year. "I have to say, when I go through the years, every year presents incredibly unique aspects of how we chose to communicate, gather and worship," Gene Policinski, chief operating officer of the Newseum Institute and its First Amendment Center, told Watchdog.org recently. But Policinski also admitted that free speech questions raised this year have been a particularly interesting bunch.
Let's look back on a handful of them, shall we? From the significant to the novel to the merely strange, here are 22 First Amendment cases from 2014—some settled, some ongoing—that are worth revisiting:
Money Talks: In McCutcheon v. FEC—one of if not the biggest speech case of the year—the U.S. Supreme Court overturned federal limits on the total amounts an individual can contribute to political committees and candidates in one election cycle. "The Government may no more restrict how many candidates or causes a donor may support than it may tell a newspaper how many candidates it may endorse," wrote Chief Justice John Roberts in the court's opinion.
Skim Milk by Any Other Name: Florida resident Mary Lou Wesselhoeft is fighting a state rule barring her business, Ocheesee Creamery, from labeling the skim milk it produces as skim milk. Florida law requires skim milk to be artificially enhanced with vitamin A; because Wesselhoeft doesn't do so, the state says she must label it "Non-Grade 'A' Milk Product, Natural Milk Vitamins Removed". With the help of the Institute for Justice, Ocheesee Creamery is challenging the requirement, which it claims violates the businesses' right to "engage in truthful speech about its lawful skim milk."
No Glove, No Love: Concluding a years-long battle this December, the U.S. Court of Appeals for the Ninth Circuit ruled that a Los Angeles County statute requiring condom use in porn does not violate filmmakers' freedom of expression. "The condom mandate survived intermediate scrutiny because it was only a de minimis effect on expression, was narrowly tailored to achieve the substantial governmental interest of reducing the rate of sexually transmitted infections, and left open adequate alternative means of expression," the three-judge panel ruled.
Scabby Strikes Back: In November, a New York district court ruled that labor union protesters could display a giant, inflateable rat—affectionately known as "Scabby"—without violating a "no strike" clause in its collective bargaining agreement. "[T]he defendants' peaceful use of a stationary, inflatable rat to publicize a labor protest is protected by the First Amendment," the court stated.
So Authentic It's Criminal: Do violent rap lyrics constitute legit threats? The U.S. Supreme Court recently heard arguments for and against this idea in the case of aspiring rapper Anthony Elonis. "Elonis ran afoul of federal law by posting graphic and violent revenge fantasies that centered on him murdering his estranged wife, murdering his employer and co-workers (those posts got him fired), and eventually killing the F.B.I. agent sent to investigate him," Damon Root reported in early December. As a result, Elonis was convicted on four counts of transmitting "communications containing any threat to kidnap any person or any threat to injure the person of another" and sentenced to 44 months in prison. The Supreme Court has yet to decide whether to uphold the conviction.
Meanwhile, San Diego artist Tiny Doo (aka Brandon Duncan) is fighting charges of promoting gang activity and violence with his rap album "Street Life." Reason TV's Paul Detrick, who has been following these issues closely, notes that "Duncan is just the latest rapper to have his music used against him in a criminal proceeding, a troubling trend that only seems to be increasing across the country."
But in a bit of good news on this front, the New Jersey Supreme Court in August nullified the verdict of a man whose rap lyrics were used to supply "motive and intent" in a murder case against him. The court ordered a new trial on the grounds that "the violent, profane, and disturbing rap lyrics authored by defendant constituted highly prejudicial evidence against him that bore little or no probative value as to any motive or intent behind the attempted murder offense with which he was charged." Unless such material has "a direct connection to the specifics of the offense," prosecutors shouldn't use it as evidence, the court ruled.
See No Handguns: A group of California gun sellers are challenging a state law that bans gun stores from displaying images of handguns if they can be seen from outside the premises. Stores are allowed to post signs featuring rifles, and they're allowed to use handgun imagery in print advertising. Lawyers argue that the seemingly arbitrary prohibition of on-premise signs featuring handguns is a violation of the First Amendment.
Buffer Zones Rebuffed: In June, the U.S. Supreme Court ruled in favor of anti-abortion activist Eleanor McCullen, who argued that a Massachusetts law creating a 35-foot anti-protest buffer zone around abortion clinics was an unconstitutional infringement on freedom of expression. Supreme Court justices unanimously agreed that such buffer zones were not illegal per se but that this particular law wasn't narrowly tailored enough to suffice. "For a problem shown to arise only once a week in one city at one clinic, creating 35-foot buffer zones at every clinic across the Commonwealth is hardly a narrowly tailored solution," Chief Justice John Roberts wrote.
Game of Thrones Gaffe: In January, a New Jersey community college professor posted a picture of his daughter on Google+. In the photo, the young girl was wearing a Game of Thrones t-shirt featuring the words "I will take what is mine with fire and blood." Bergen Community College adminstrators took this as the professor making a threat, suspended him without pay, and ordered him to see a psychiatrist. Months later, the college acknowledged that it "may have lacked basis to sanction" him for the shirt and "potentially violated (his) constitutional rights, including under the First Amendment."
Truthiness Win: In September, the U.S. District Court for the Southern District of Ohio ruled in favor of the anti-abortion group Susan B. Anthony (SBA) List in its challenge to a state law banning "false" political speech. In 2010, SBA List was charged with violating the law via billboards opposing the reelection of Democratic state Rep. Steve Driehaus. The district court declared the state law an unconstitutional violation of free speech, noting that "Lies have no place in the political arena and serve no purpose other than to undermine the integrity of the democratic process," but "at times, there is no clear way to determine whether a political statement is a lie or the truth. What is certain, however, is that we do not want the Government (i.e., the Ohio Elections Commission) deciding what is political truth—for fear that the Government might persecute those who criticize it. Instead, in a democracy, the voters should decide."
Camera-Shy Cops Lose: This summer, a federal judge allowed a civil suit brought by Texas activist Antonio Buehler, who was arrested seveal times for taking pictures of police officers in action, to go forward. The decision noted "a robust consensus of circuit courts of appeals" that "the First Amendment encompasses a right to record public officials as they perform their official duties." In October, a trial court found Buehler not guilty on criminal charges related to one of the arrests.
Unconstitutional Ultrasounds: In late December, the U.S. Court of Appeals for the 4th Circuit struck down a North Carolina law requiring physicians to perform an ultrasound, display a sonogram, and describe the fetus to women seeking abortions. Because the intent of these directives is ideological in nature they represent compelled speech, the court ruled, and are thus in violation of the First Amendment.
No Accounting for Arousal: When a Texas appeals court struck down a state ban on taking "upskirt" photos in September, the decision was met by much outrage in the national news media. But the law, which criminalized "improper photography or visual recording" in public places "with intent to arouse or gratify the sexual desires of any person" was unconstitutionally broad, with the potential to ban all sorts of harmless public photography. "Banning otherwise protected expression on the basis that it produces sexual arousal or gratification is the regulation of protected thought," the court noted, "and such a regulation is outside the government's power."
Prostitution Pre-Crime: In 2013, Arizona resident Monica Jones was arrested for "manifesting prostitution", a crime that doesn't require one to actually have sex for money or even offer to have sex for money but merely look, make gestures, or otherwise behave in a manner that police deem sufficiently suspicious (this includes asking a cop if they are a cop). This year Jones, with the help of the American Civil Liberties Union of Arizona, is challenging the state statute, asking the Arizona Supreme Court to strike down the "unconstitutionally vague" rule as a violation of the First Amendment.
Fighting Free-Speech Zones: In January 2014, University of Hawaii at Hilo student Merritt Burch attempted to hand out pocket Constitutions at a student event but was barred from doing so by a campus administrator. The school later told Burch she was only allowed to pass out Constitutions in the university's "free speech zone," a tiny area on the edge of campus. With the help of the Foundation for Individual Rights in Education, Burch and another student challenged the university's policy in Hawaii's U.S. District Court, alleging that it "unconstitutionally restricts access to open areas on campus by requiring students to seek permission to speak at least seven business days in advance and by limiting the areas where students may engage in spontaneous expressive activities to only 0.26 percent of UH Hilo's 115-acre campus." In early December, the University settled with the students, agreeing to revise its speech policies system-wide to allow for free expression and the distribution of literature in "all areas generally available to students and the community."
Keep Parody Legal: This summer, the American Civil Liberties Union filed a lawsuit on behalf of 29-year-old Jon Daniel, the creator of a Twitter account that parodied the mayor in his hometown of Peoria, Illinois. Upon learning about the account, the real Peoria Mayor ordered local law enforcement to raid Daneil's home and tried to have Daniel charged with falsely impersonating a public official.
License to Editorialize: In May, the New Hampshire Supreme Court ruled that the state's Department of Motor Vehicles erred in prohibiting a resident from getting a vanity license plate that said "COPSLIE."
Frack Attack: In 2011, environmental activist Steve Lipsky was sued for defamation by fracking company Range Resources after Lipsky posted YouTube videos and made statements to local news criticizing fracking. This December, the Texas Supreme Court heard arguments to decide whether Lipsky's comments are protected by the First Amendment. "Range has a right to protect its reputation, but the speech they're complaining about is protected speech," Lipsky's lawyer Joe Sibley said. "If we're going to allow companies to sue people for defamation every time they don't like what's being said, then that basically allows corporations to silence public participation."
Boobies Bans: In March, the U.S. Supreme Court rejected a case from a Pennsylvania school district seeking to ban students from wearing "I ? boobies" bracelets as part of a breast-cancer awareness campaign. The denial let stand a 2013 appellate court finding in favor of the students on First Amendment grounds.
In August, however, a federal judge in Indiana sided with a Fort Wayne school district that banned the bracelets. The ACLU of Indiana had challenged the school's decision, arguing that students had a free speech right to wear the bracelets. U.S. District Judge Joseph VanBokkelen disagreed, ruling that high school students were not mature enough to handle the bracelets' message.
Over-protecting Privacy: In March, the Illinois Supreme Court overturned a state law making it a felony to record public officials without their permission, even as they're performing public duties. The ban "criminalizes a wide range of innocent conduct," including "the recording of conversations that cannot be deemed private: a loud argument on the street, a political debate on a college quad, yelling fans at an athletic event, or any conversation loud enough that the speakers should expect to be heard by others," noted the justices in a unanimous decision. The court concluded that the eavesdropping ban "burdens substantially more speech than is necessary to serve a legitimate state interest in protecting conversational privacy."
