Constitutional Law

Free Speech Review: 22 Significant, Silly, or Otherwise Noteworthy First Amendment Cases From 2014

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Francis Schmidt/Google+

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.

Ocheesee Creamery/Facebook

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. 

zeldman/Flickr

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.

Tiny Doo/Twitter

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. 

afagen/Flickr

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." 

Antonio Buehler/Facebook

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. 

AndarsKI/Flickr

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. 

Cato Institute

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."

Philip Nelson / Foter / CC BY-SA

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." 

NEXT: Best of 2014: How Eva Moskowitz Outmuscled the Teachers Union

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  2. OK, my zeal as a free speech proponent just got dulled.

    Does anyone else hate those Goddamned ASPCA commercials? I fuckin’ hate ’em. Now I hate them even more.

    My three year old grandson was watching TV just now and one came on. I wasn’t looking at the TV so I didn’t notice. He teared up, pointed at the TV and said “Doggy sad!” and burst into a crying fit.

    Fuckers.

    1. Dude it’s almost 2015, WTF are you doing watching commercials?

      1. Look, Hugh, broadcast networks depend on commercial ad revenues. It’s your obligation as a capitalist to watch every single commercial you can.

        1. My obligation as a capitalist is to vote with my wallet. And until broadcast networks start presenting worthwhile content in a convenient and affordable format, they’re not getting one thin bitcoin from me.

          1. Fine. You can watch Breaking Bad 2: The Breakup with interruptions for donations. Commie.

            1. Hey, there’s a reason they include that optional button when you submit your monthly Netflix subscription payment that says “Cable subscribers are fucking retarded.”

              1. Of course, I’m just kidding. I fucking hate commercials and can’t believe commercial TV hasn’t died. I mean, it’s almost 2015.

                1. Right?! And commercial websites like Reason will also soon be in the dustbin of history! I mean ” free sewing class” ads on the right hand margin! How can I bear it?!

                  1. free sewing class” ads

                    WTF?

                    I’m really just looking for an excuse to use the interrobang.

                  2. Reason has commercials?

                    /AdBlock luver

                2. Remember that commercial TV provides a public service as part of their licensing with the FCC.

                  As soon as commercial starts to die, it’ll be subsidized.

                  1. As long as there are sports commercial TV won’t die. You are thinking of broadcast TV anyway. People pay good money to watch commercials on cable. And cable TV has no obligation to pretend to provide public service to keep their license.

                    The public service aspect of broadcasting is a joke at this point. I doubt it would be subsidized (except PBS which already is to some extent).

    2. Watching the Mythbusters marathon? It seems like every other damn break is the ASPCA commercial showing some poor suffering animals.

    3. I am so glad I have no idea what you are referring to.

  3. real Peoria Mayor

    Is there some rule against naming Jim Ardis, otherwise known as the guy who took “Biggest Douche in the Universe” award away from John Edward?

    1. If you say his name three times a SWAT team will attack your house while you sleep.

  4. Don’t forget the people who were arrested when they protested against a black mass in Oklahoma City:

    http://www.tulsaworld.com/news…..2a5aa.html

    1. And don’t forget America’s leading criminal satire (i.e., criminal libel) case, amply documented at:

      http://raphaelgolbtrial.wordpress.com/

      At this point, the African Court of Human Rights, the European Court of Human Rights, and the U.N. Human Rights Committee are all more enlightened than our Supreme Court which, unlike those bodies, has never definitively ruled that reputational harm cannot be punished with jail. The resuscitation, under bizarre legal pretexts, of criminal libel in New York is a glaring indication of how weak our constitutional protections for speech really are.

  5. Happy New Year ENB! Your articles make a mockery of TIWTANLW. You are a true heroine of liberty. best wishes for a prosperous 2015!

    1. Nice try, you still don’t get a tote bag.

      1. I don’t want a man purse.

        I have a less than 24 hours to practice being less cynical( my own resolution)

        1. You’ll give up, it’s too much work to be optimistic. It burns through the cognitive dissonance buffers too fast.

          1. I probably won’t quit smoking either, but a few days off will still be good for me.

          2. You seem pretty optimistic about that prediction.

      2. Also, I enjoy your wry comments Notorious, they have brought me much joy. I come here for the banter more than for the articles.

        /not sarc

        (Really! Happy New Year!)

        1. Happy New Year to you.

          Or as I like to put it, Happy Feast of the Circumcision!

          http://www.metropolitancantori…..ision.html

          1. So that’s where the tote bag comes in. I thought it was a wallet!

            ( Rubs furiously)

      3. I have a reason tote. It holds an Android Tablet and my iPad. Chicks think I’m faggier than usual. You’re better off.

    2. Okay, what does TIWTANLW mean? I can’t get any definitions from Google…

      1. This Is Why There Are No Libertarian Women

        Also, TIWTANFL = This Is Why There Are No Female Libertarians

  6. I still maintain that, the GoT kid picture, is creepy as hell.

    1. It’s posessed by a crab demon.

  7. Free Speech is the goddamn motherboard of societies based on liberty and openness. Fry your societal motherboard and you’ve just fucked a century’s worth of intellectual progress.

    Society 20.14 needs to learn to fight more for its right to mouth off to authority and gain independence from the establishment suits. Very few Liberty badasses are being created these days.

    1. Would “The Jacket” qualify as a liberty badass?

      1. The Jacket is a Liberty adorable.

        1. Adorable? Now, I know you’re rollin’.

          1. Badassery should have an adorable side, bro. This is the libertarian way, Heroic M. Libertarians are indignant fighters for freedom. And since we love to fuck we have to be adorable.

            1. we have to be adorable.

              Not since I was like 5.

              *Hangs head and sobs pitifully*

        2. Agile Cyborg simply screams “Liberty Badass”.

          1. Brutha Gill, I’m fresh outta handjobs.

            1. Your parents didn’t actually name you Agile Cyborg, did they? So it doesn’t count.

              Heroic Mulatto? You know he is badass, cause “heroic” is right there in his name!

              1. You strike me as a dapper bisexual gentleman with an interesting mustachio and head-crushing biceps with a super hot brunette gf who likes to wear neon miniskirts.

                1. LOL, sorry dude, but while your rambled writing is spot on, you went 0/5 on that one.

                  But now I haz a sad because the dude you describe sounds much more interesting than I am.

                  1. Quit crying, whore. There exists a billion fucking ‘awesome’ goddamn descriptions where at least five of them will describe the Gill. I just don’t have an eternity to figure out that fucking math, brah.

    2. I think badness comes at least partly, from your name. Marshall Gill doesn’t make you think badass, for instance. Warty, obviously badassed.

      Few people give their children awesome fucking badass names like Liberty Ordeath. Think about it. William Wilberforce? There is a name for a Liberty badass. Harry Browne? Clearly a badass, just from his name. Nick Gilespie? Ok, it doesn’t necessarily work all the time.

      1. +1 Liberty Valance

      2. Liberty badassery is about balls, guts, and spit-fire determination to fuck with and generally overhaul established legalistic mores and traditionalized social confinements.

        Names might be fucking awesome in the films and books but in real life, man, a name is like a boy named Sue. Sue kicked some ass and very few would have thought otherwise.

        1. -1 Man in Black?

          1. So this Trueballin’ Scottsman shows up and plays Yelp on my shitty posts. My google made my fucking tips post this: A Cantie Yule an a Guid New Year!!

          1. Wait. wat? Cool mo shit! Extra bodacious.

  8. . . . a New Jersey community college professor posted a picture of his daughter . . . wearing a Game of Thrones t-shirt featuring the words “I will take what is mine with fire and blood.”

    He’s lucky his home wasn’t raided. New Jersey is where a father fell victim to a home invasion by police last year after he posted a pic of his teenage son holding his new .22 rifle.

    http://www.nydailynews.com/new…..-1.1293868

    1. Fuck the raiders. Shit-brained ninnies for realz. Christies NJ establishment communism rollin like a freak.

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