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The First Amendment This Week

Can government prevent a public demonstration?

One of the first things they taught us in law school was the phrase, “maybe yes, maybe no.” So, let’s ask a question that’s making the rounds: Does the First Amendment protect your right to free speech? The correct answer is, maybe yes, maybe no.

Remember, the First Amendment prohibits the government from restricting free speech. It says nothing about Facebook, Twitter, Google or any other company. Within a few limits related to fair employment practices, private companies can pretty much restrict speech all they want. They can prohibit almost any kind of content they want. A company can even punish you for speech you make away from the workplace.

But. can a government entity, say a city or county, prohibit a group from marching or having a demonstration?

The answer is, probably not. The government can place a variety of restrictions on the march, but government officials simply cannot prohibit a march because they don’t like the content or what the marchers stand for.

These rules, though, do not apply to violent action. Speech, armbands, signs, marches and demonstrations are all protected. Violence is not.

Likewise, if the government officials can show there is a high probability of what is called “imminent lawless action,” then they may be able to ban the speech. But a countervailing argument is that if you don’t like the message, avoid the messenger.

Actually, I rather wonder, if the other side doesn’t show up, thus totally eliminating the possibility of violence, would the news media would even bother to cover the march or demonstration.

It’s particularly interesting to note that the demonstration in Boston last week was peaceful. So it will be difficult to argue that any time a particular group stages a march it will be accompanied by violence.

I’ve always heard that silence is golden. And I wonder, what if someone staged a march, and no one from the other side showed up?

Dr. Larry Burriss, professor of journalism at Middle Tennessee State University, teaches introductory and media law courses. At the graduate level he teaches quantitative research methods and media law.

Ninth Circuit poised to resolve major free speech issue in secret proceeding

Paul Alan Levy writing in the Consumer Law & Policy Blog notes that “[t]he United States Court of Appeals for the Ninth Circuit has issued an order signed only by the Clerk declaring that a significant free speech issue bearing on the rights of anonymous Internet users will be decided in a totally secret proceeding, involving sealed briefs, a sealed record, and without any help from would-be amici (including Public Citizen) seeking to explain the dangers posed by the proceeding.”

Paul Alan Levy of Public Citizen

“The case arises from a subpoena served by the United States on the employer-rating site Glassdoor, originally demanding identifying information about the owners of more than one hundred pseudonymous accounts that had, it appears, been used to post reviews of a particular employer whose contracting practices were subject to a federal criminal investigation. Over the past few years, Glassdoor has been one of the most aggressive companies demanding strong justification for civil subpoenas seeking to identify its users (considering how expensive legal services are, this company commitment earns it much credit in my book). Extending this approach to the criminal law context, Glassdoor refused to produce the information demanded by the grand jury subpoena, citing the First Amendment right of its users to speak anonymously.”

“In an effort to compromise, the government limited its production demand to eight specified reviewers. Glassdoor responded to that offer by proposing that it notify the users of the subpoena and provide identifying information for such of its users who were willing to be identified to the prosecutors. After the government rejected this offer, Glassdoor moved to quash the subpoena, invoking its users’ First Amendment right to speak anonymously which, Glassdoor contended, created a privilege against production of the information. At the same time, it notified its users of the subpoena, thus meeting one of the conditions of the Dendrite line of cases that it cited in its motion. Those cases rely on the First Amendment right to speak anonymously as a basis for posing procedural and substantive obstacles to civil subpoenas seeking to identify online speakers so that they can be served with process and sued for wrongful speech. Eventually, Glassdoor also invoked Bursey v. United States, a decision in which the Ninth Circuit quashed in part a grand jury subpoena directed at the process of publishing the newspaper of the Black Panther Party.”

“The entire subpoena litigation was conducted under seal, but we know some of the details because, having taken a contempt citation to secure its ability to appeal, Glassdoor next obtained the government’s stipulation for the partial unsealing of the briefs exchanges by the two sides on Glassdoor’s motion to quash. Glassdoor had appealed, and raised the possibility that parties beside itself might wish to provide the Court of Appeals with the benefit of their views of the applicable law. The trial judge granted that request; as a result the briefs supportingand opposing the Glassdoor motion to quash, as well as reply briefs both from Glassdoor and from the government, are available in the public record, as is the judge’s ruling on the motion. . . .”

[ht: Volokh Conspiracy]

Professor Ruthann Robson

Robson on New First Amendment Rulings

  • Ruthann Robson, Third Circuit: First Amendment Right to Record PoliceConstitutional Law Prof Blog, July 7, 2017 (In its opinion in Fields v. City of Philadelphia, the Third Circuit concluded that “Simply put, the First Amendment protects the act of photographing, filming, or otherwise recording police officers conducting their official duties in public.’  As the panel majority opinion by Judge Thomas Ambro noted, ‘Every Circuit Court of Appeals to address this issue (First, Fifth, Seventh, Ninth, and Eleventh) has held that there is a First Amendment right to record police activity in public’; the Third Circuit joined ‘this growing consensus.’”)

→ Video of oral arguments in Third Circuit 

See also: Rebecca Tushnet, Court gags on Utah’s ag-gag law (July 13, 2017)

→ Related:  Press Release: Animal Legal Defense Fund Puts Wisconsin Hunting Statute in the Cross Hairs (“Today the Animal Legal Defense Fund filed a lawsuit in federal court aiming to strike down a recently amended Wisconsin statute which bans photographing, videotaping, approaching or even “maintaining a visual or physical proximity” to a hunter. The organization argues the law unconstitutionally restricts free speech and violates the First Amendment.”)

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Education in reality television is close to zero

Last week it was the ultimate in reality television: man versus shark, as Michael Phelps raced a great white shark. Of course, it was only a CGI shark, but apparently a lot of people thought it was going to be real.

Really? A person is going to get into the water next to a top-level predator? And, on a good day Phelps can hit 6 mph. A great white: 25 mph. How many different ways can you say, “the fix was in”?

 For 16 weeks we’ve been “Hunting Hitler,” a program littered with words like “could be, “has the potential,” and “may have significance.”

For 16 weeks we’ve been “Hunting Hitler,” a program littered with words like “could be, “has the potential,” and “may have significance.”

Now, I’ll admit, I’m something of a fan of television programs that allegedly try to make new discoveries or uncover hidden treasures and mysteries. But I’ve also discovered the results are always the same: failure.

Ever since Geraldo Rivera opened Al Capone’s hidden treasure vault in 1986 and found absolutely nothing, these kinds of programs seem to have a dismal success rate.

For three years television has been exploring Oak Island in search of hidden treasures that may, if you listen to the program, house the Ark of the Covenant. But here’s a certainty: before every commercial break one of the participants will have look of shock on his face, the audio track will have a truncated sound of exclamation, and then nothing.

For 16 weeks we’ve been “Hunting Hitler,” a program littered with words like “could be, “has the potential,” and “may have significance.”

The History Channel apparently thought it had a winner with the oldest American mystery, the disappearance of 117 colonists at Roanoke, Virginia, because it devoted two separate programs to an unsuccessful search.

But like every other previous search since 1602, the television programs apparently didn’t find anything new or conclusive.

Actually, the whole point of these programs is to attract audiences, which they certainly do. I’ll admit I’ve watched several of them, but my belief level is close to zero. Entertainment, certainly. Education, certainly not.

Dr. Larry Burriss, professor of journalism at Middle Tennessee State University, teaches introductory and media law courses. At the graduate level he teaches quantitative research methods and media law.

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