A quarter-century or so ago, a majority of the Supreme Court, per Chief Justice William Rehnquist, sustained the constitutionality of a 36-foot abortion clinic buffer zone and a related noise-level provision. The Court held that such restrictions burdened no more speech than necessary to serve the goals sought by the injunction. The case was Madsen v. Women鈥檚 Health Center, Inc (1994).
Then, in Schenck v. Pro-Choice Network of Western New York (1997), Rehnquist again spoke for the majority in holding that while fixed buffer zones were constitutional, floating buffer zones were not. argued on behalf of the petitioner while Walter Dellinger argued on behalf of the United States as amicus curiae supporting the respondents.
Next, in Hill v. Colorado (2000) 鈥 again, with Sekulow for the petitioners 鈥 the Court sustained a law that required speakers to obtain consent from people within 100 feet of a health care facility's entrance before speaking, displaying signs, or distributing leaflets to them. The vote was 6-3 with Justices Kennedy, Scalia and Thomas in dissent.
Things changed in McCullen v. Coakley (2014); there, Chief Justice Roberts wrote for the unanimous majority in striking down a Massachusetts law that created a 35-foot buffer zone around the entrances, exits, and driveways of abortion clinics. While Roberts declined the invitation to overrule Hill v. Colorado, four justices would have either limited or overruled Schenck and Hill.
Kristen K. Waggoner (counsel for Petitioners) (Alliance Defending Freedom)
The latest controversy
Against that historical backdrop comes the cert. petition in the case of . As stated by Judge Cheryl Ann Krause in her for a Third Circuit panel, the relevant law and facts are:
This case requires us to determine the constitutionality of a Pittsburgh ordinance that creates a fifteen-foot 鈥渂uffer zone鈥 outside the entrance of any hospital or healthcare facility. Pittsburgh, (2005). In relevant part, the Ordinance states that 鈥淸n]o person or persons shall knowingly congregate, patrol, picket or demonstrate鈥 in the prescribed zone. Outside of a Planned Parenthood in downtown Pittsburgh, Plaintiffs engage in leafletting and 鈥減eaceful . . . one-on-one conversations鈥 conducted 鈥渁t a normal conversational level and distance鈥 intended to dissuade listeners from obtaining an abortion. As the City has asserted that the Ordinance applies to this speech, known as 鈥渟idewalk counseling,鈥 Plaintiffs argue that the Ordinance is facially unconstitutional under the First Amendment and the District Court erred in granting summary judgment in the City鈥檚 favor. Because we conclude that the Ordinance does not cover sidewalk counseling and thus does not impose a significant burden on speech, we will affirm.
鈫 See also Judge Thomas Hardiman's concerning the impact of Reed v. Town of Gilbert (2015) on buffer zone cases such as Bruni.
Issues raised
John J. Bursch (counsel for Petitioners) (Allience Defending Freedom)
As the , the issues raised in the case are:
1. Whether federal courts have authority to save a state or local law from unconstitutionality by positing a limiting construction that has no state-law basis and contradicts governing authorities鈥 understanding of their own law.
2. Whether Pittsburgh鈥檚 buffer-zone ordinance violates the Free Speech Clause.
Eight-member court denies cert. in religious speech case
(statement of Gorsuch, J., joined by Thomas, J., re denial of cert.). The issues according to SCOTUSblog:
(1) Whether the Washington Metropolitan Transit Authority鈥檚 policy of refusing to accept advertisements that promote or oppose religion or reflect a religious perspective violates the First Amendment; and (2) whether that discrimination against religious speech violates the Religious Freedom Restoration Act.
Court calls for government response in nonconsensual dissemination of non-obscene materials case
(response due on or before May 4, 2020). The issues according to SCOTUSblog:
(1) Whether strict First Amendment scrutiny applies to a criminal law that prohibits nonconsensual dissemination of non-obscene nude or sexually oriented visual material; and (2) whether the First Amendment requires a law that prohibits nonconsensual dissemination of non-obscene nude or sexually oriented visual material to impose a requirement of specific intent to harm or harass the individual(s) depicted.
Eugene Volokh, "" The Volokh Conspiracy (April 4). Excerpt:
Prof. Eugene Volokh
Liberty of movement and of physical association鈥攃oming together for political, religious, social, professional, recreational, or other purposes鈥攊s likewise tremendously important. "The right of the people peaceably to assemble, and to petition the Government for a redress of grievances" is just one particular express elaboration of this liberty. But the premise behind the liberty is that people assembling together can choose to be "peaceable," and thus physically safe for each other and for bystanders, and we should punish only those who deliberately abuse the right (by acting non-peaceably).
Contagious disease, unfortunately, has the property that I can sicken or even kill you with it entirely inadvertently, without any choice on my part. It's not like carrying a gun, which I might misuse but which I can choose to use properly. It's like carrying a gun that every so often (and largely unavoidably) just shoots a bullet in a random direction, without my pulling the trigger.
Mayer & Bowman on Ninth Circuit First Amendment parody case
and , "," Mitchell Silberberg & Knupp (April 3)
Marc E. Mayer (Mitchell Silberberg & Knupp LLP)
In , No. 18-16012 (9th Cir. March 31, 2020), the Court of Appeals for the Ninth Circuit held this week that a rubber dog toy designed to resemble a bottle of Jack Daniel鈥檚 Black Label Tennessee Whiskey 鈥 the 鈥淏ad Spaniels Silly Squeaker鈥 鈥 is an 鈥渆xpressive work鈥 and therefore entitled to interpose a First Amendment defense against the whiskey company鈥檚 trademark infringement claims. . . .
In a 3-0 decision, the Ninth Circuit reversed the District Court鈥檚 decision. The Ninth Circuit agreed that Jack Daniel鈥檚 bottle design, namely the combination of its shape and label design, was entitled to trademark protection because it is distinctive, non-generic and nonfunctional. But the Court of Appeals also concluded that the 鈥淏ad Spaniels鈥 toy was a protected 鈥渆xpressive work,鈥 and therefore the District Court erred in assessing the likelihood of confusion factors without giving proper weight to the First Amendment interests. By concluding that the toy was an expressive work, the Ninth Circuit arguably broadened the scope of First Amendment protection accorded to consumer products facing claims of trademark infringement and dilution. . . .
Theresa Bowman (Mitchell Silberberg & Knupp LLP)
VIP Products is notable because it represents the first time that a court squarely found a consumer product to be an expressive work for purposes of a trademark analysis. However, there is also reason to believe the opinion will prove primarily relevant to parody products. The Ninth Circuit focused on the humorous message conveyed by the dog toy. Bad Spaniels, with its 鈥43% POO BY VOL.,鈥 was primarily made to be funny 鈥 and the Ninth Circuit concluded that this vaulted Bad Spaniels into the realm of artistic expression. The dog toy, observed the Court, is 鈥渟urely not the equivalent of the Mona Lisa鈥 but it does communicate a humorous message through word play that is 鈥渘ot rendered non-expressive simply because it is sold commercially[.]鈥 According to the Court, it is Jack Daniel鈥檚 own 鈥渋dealized image鈥 of its brand as a representation of product excellence that sets the Bad Spaniels apart as artistic expression. 鈥淏ad Spaniels comments humorously on precisely those elements that Jack Daniels seeks to enforce here鈥 by 鈥渏uxtaposing the irreverent representation of the trademark with the idealized image created by the mark鈥檚 owner.鈥
Coming next month: Bhagwat on free expression
Ashutosh Bhagwat, "" (Cambridge University Press, May 31, 2020)
The First Amendment to the US Constitution protects free speech, freedom of the press, freedom of association and assembly, and the right to petition the government. Why did the Framers protect these particular rights? What role were these rights intended to play in our democracy? And what force do they retain in today's world? In this highly readable account, Ashutosh Bhagwat explores the answers to these questions.
The first part of the book looks at the history of the First Amendment, early political conflicts over its meaning, and the lessons to be learned from those events about the nature of our system of government. The second part applies those lessons to our modern, fractious democracy as it has evolved in the age of the Internet and social media. Now as then, the key to maintaining that democracy, it turns out, is an active citizenry that fully embraces the First Amendment.
Book on free speech 'myths'
Peter Cave, "" (Atlantic Books, Sept. 5, 2019)
In this witty and mischievous book, philosopher Peter Cave dissects the most controversial disputes today and uses philosophical argument to reveal that many issues are less straightforward than we'd like to believe. Leaving no sacred cow standing, Cave uses ingenious stories and examples to challenge our most strongly held assumptions. Is democracy inherently a good thing? What is the basis of so-called human rights? Is discrimination always bad? Are we morally obliged to accept refugees? In an age of identity politics and so-called 'fake news', this book is an essential resource for reinvigorating genuine public debate - and an entertaining challenge to accepted wisdom.
Forthcoming book on free speech wars
Charlotte Lydia Riley, editor, "" (Manchester University Press, Jan. 19, 2021)
Collecting together a diverse group of commentators, activists and academics, the book answers the following questions: who gets to exercise free speech and who does not? What happens when powerful voices think they have been silenced? Why do some issues become sites of free speech battles and what are the consequences of this? How do the spaces and structures of 鈥榮peech鈥 鈥 mass media, the internet, the lecture theatre, the public event, the political rally 鈥 shape this debate?
This book argues that free speech is invoked by actors right across the political spectrum, but that in reality very few of the debates have a clear or coherent idea of what is meant by the concept of 鈥榝ree speech鈥.
John Vile on Shiell's 'African Americans and the First Amendment'
John Vile, Book Review, "," The Free Speech Center (April 3)
"" (Albany: State University of New York Press, 2019) by documents how freedom of speech, press, assembly, and related First Amendment rights have helped secure greater equality for African Americans.
More provocatively, in opposing those who would formulate broad campus speech codes or laws against hate speech, author convincingly argues that the values of free expression and equality 鈥渁re not in fundamental conflict鈥 (p. x) but are largely complimentary. Sheill is a professor of philosophy at the University of Wisconsin-Stout and has previously written the book "," which is now in its second edition. . . .
Shiell divides his book into four chapters.They respectively deal with: American Apartheid (his description of laws relative to race from colonial times through the 1930s); the pivotal case of (1937), which he considers to have been more important than the more publicized Scottsboro Cases; the civil rights movement; and modern calls for broad and laws against .
Zooming in: Geoff Stone on free speech & related issues
Watch Geoff Stone speak on (April 2).
More in the news
Eugene Volokh, "," The Volokh Conspiracy (April 6)
A federal court today halted enforcement of a California law that officials deployed to suppress journalism about a controversial tech CEO's sealed arrest records.
