Free Speech

“Do you want me to write an opinion and say there’s no free speech right to quietly converse on an issue of public importance?”

– Justice Anthony Kennedy, in oral arguments for McCullen v. Coakley

On Wednesday, the United States Supreme Court heard oral arguments in McCullen v. Coakley, a constitutional challenge to a Massachusetts law creating buffer zones, sometimes called “zones of exclusion,” around abortion clinics. The law at issue, Mass. Gen. Laws ch. 266 § 120E ½ (2007), provides in part as follows: “No person shall knowingly enter or remain on a public way or sidewalk adjacent to a reproductive health care facility within a radius of 35 feet of any portion of an entrance, exit or driveway of a reproductive health care facility.” Eleanor McCullen, one of the challengers of the law, is a 76-year-old grandmother who in the past has stood on public sidewalks near abortion clinics in order to initiate one-on-one, non-confrontational conversations with women seeking abortions. The petitioners claim that, over the years, hundreds of women have accepted offers of help from McCullen and the other petitioners. They argue that the new law violates their right to free speech.

The First Circuit opinion below characterizes the plaintiffs’ appeal as advancing “a salmagundi of arguments, old and new, some of which are couched in a creative recalibration of First Amendment principles.” That opinion finds that “[t]he Massachusetts statute at issue here is a content-neutral, narrowly tailored time-place-manner regulation that protects the rights of prospective patients and clinic employees without offending the First Amendment rights of others.”

Unfortunately, the First Circuit is wrong about each of those points. Even more unfortunately, this law does the exact opposite of what most of us would hope . . . .

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University of Denver law professor Nancy Leong continues her quest to make the internet safe for female law professors who engage in questionable scholarship. When last we heard from Leong, she was getting called out by Paul Campos for “research” that involved putting up white versus Asian profiles on Ashley Madison.

But Leong is better known for her ongoing dispute with online commenter “dybbuk.” Dybbuk made a number of nasty, racist, and sexist comments about Leong. Leong says that the comments have made her fear for her safety. She’s figured out who Dybbuk really is and is now asking his state bar to launch an ethics inquiry into his online behavior.

If you don’t like people trying to make your life awful, you shouldn’t talk on the internet. I think that rule applies equally to Leong and Dybbuk…

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Call it a “Legal Blogger Summit.” Call it “Blawgocolypse 2014″ or “Law Bloggers, Now With Sound,” but we’re calling it the “Attorney@Blog Conference,” a first-of-its-kind, one-day convocation of the leading legal bloggers, taking place on Friday, March 14th, at the Yale Club of NYC. The conference will feature a series of panel discussions covering an array of exigent issues facing the legal blogging community, including free speech, race and gender, and technology. ATL editors David Lat, Elie Mystal, Joe Patrice, and Staci Zaretsky will serve as moderators. Panelists will include stars of the legal blogosphere, from journalists to academics to activists. While we’re still finalizing our lineup of speakers and panelists, we wanted to give you an early look at the day’s schedule. We’ll be adding details as they’re confirmed. Click here for all the details.


It just wouldn’t be prudent to let him back into society. (Image via Sunday Mercury)

* Remember the chimps seeking habeas? Well, bad news: they’re staying in custody, per an order from Judge Ralph A. Boniello III. Now their freedom is up to the Army of the 12 Monkeys. [Wired]

* Elizabeth Coker has announced she is seeking the office of Polk County Criminal District Attorney. While some may disagree, I think this is a great idea. She’s been directing the litigation strategies of prosecutors for some time now. So why does a judge drummed out of office for texting prosecutors think she should go back into public service? Prayer. Of course. [Polk County Today]

* Judge Steven Rhodes is overseeing the Detroit bankruptcy. He’s not taking any guff off anyone, including an investment banker who pledged that it was “very important” that his firm help the city, prompting Judge Rhodes to point out, “What’s very important to you is to make money.” He’s also a badass rhythm guitarist. [Associated Press via Yahoo!]

* A Colorado judge has declared that a discriminating baker can no longer prevent gay couples from buying wedding cakes. It’s unclear if he’s ordering the baker to stock those stupid plastic cake toppers in groom & groom format. [Consumerist]

* Proofreading law school exams. This article is aimed at law students, but maybe it should be directed toward a certain St. John’s professor… [Law School Toolbox]

* George Zimmerman’s girlfriend wants him out of jail. She originally told police that Zimmerman pointed a shotgun in her face. That’s Princess Bride-level true love s**t right there. [Slate]

* Michigan State celebrated putting Ohio State in its place by setting “at least 57 fires.” Can someone holding a sign encouraging people to “Burn the Couch” be held liable? A better question is whether West Virginia can sue Michigan State for stealing their hillbilly intellectual property? [PrawfsBlawg]

* Sadly, Akerman partner Richard Sharpstein was found dead in his home today. He was 63. [Daily Business Review]

* A few tipsters sent this one in. They claim it’s a law student acting like a jerk trying to buy cigarettes in a drug store. The sound is spotty, so none of us could figure out exactly what was going on, but it’s worth it for the guy who yells: “Yeah, tell him! Tell him when you were born!” Video after the jump….

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Sarah Jones

* After its patent battle in the courts, Apple wants Samsung to pay for a portion of MoFo’s legal fees. When you think of it, $15.7 million is a rather piddling amount when full freight is $60 million. [The Recorder]

* Say goodbye to your pensions! As it turns out, law review articles aren’t so useless after all. Detroit’s foray into Chapter 9 eligibility is the brainchild of a Jones Day partner and associate duo. [Am Law Daily]

* It must be really stressful to plan a wedding when your defamation victory is on appeal to the Sixth Circuit. The latest chapter in the Sarah Jones v. TheDirty.com case could mean curtains for online speech. [AP]

* When it comes to their credit ratings, stand-alone law schools are getting screwed due to their inability to put asses in their empty seats. Four out of five schools profiled could be in big trouble. Which ones? [WSJ Law Blog (sub. req.)]

* “You need to not dress like that.” TMZ’s attorney, Jason Beckerman, is an alumnus of Kirkland & Ellis, and he was quickly advised by a producer that he needed to lose his lawyer duds. [California Lawyer]

* The newest edition of the Supreme Court coloring book is out! Christmas has come early if your kid reads Babar and Curious George with originalist intent as racist, colonialist tracts. [Lowering the Bar]

* The Young Conservatives group at the University of Texas has canceled its intended “Catch an Illegal Immigrant” contest amid a firestorm over discrimination vs. free speech. Now Cartman can go back to class. [NPR]

* The Title IX Network is filing lawsuits against universities that allegedly mishandle sexual assault claims on campus. I mean, if the government isn’t going to do its job, someone has to step in. [Jezebel]

* An individual has no expectation of privacy in an online dating profile. They should also have no expectation of a fulfilling relationship. [IT-Lex]

* What is the duty of a sports franchise to protect spectators from flying hot dogs? Asking for a friend… [The Legal Blitz]

* Real Simple Magazine’s December Book Club nominees are out and the list includes Helen Wan’s The Partner Track (affiliate link). The winner will be determined by online voting and closes Sunday, Nov. 24 at 11:59 PM EST, so please go to this link and vote for The Partner Track! [Real Simple]

* Popehat has a site store now. As of now they don’t sell branded mitres, which seems like a damn shame. [Popehat]

* The Obama administration is supporting a ban on unlocking cellphones while publicly supporting unlocking. First they came for unlocking and I didn’t speak out because I didn’t need to unlock my phone. Then they came for Angry Birds and there was no one left to speak for me. [Slate]

* Dean Frank H. Wu discusses the Jimmy Kimmel controversy. It’s not a funny piece, but neither is Jimmy Kimmel. [Huffington Post]

A person expects that the area under their clothing is private and protected against hostile intrusion … but if a clothed person is out in public and reveals areas under their clothing, whether inadvertently or otherwise, to plain view, she or he no longer has an expectation of privacy.

– Attorney Michelle Menken, arguing that the Massachusetts Peeping Tom law does not apply to her client, a man who was arrested for exercising his right to free speech — by taking “upskirt” pictures of women on the Boston subway.

* The NSA protests that its spying on foreign leaders was entirely legal. In defense of the NSA, this latest uproar seems misplaced. Warrantless spying on Americans is illegal, but spying on foreign governments is kind of the whole point of the NSA. [Associated Press]

* Judge James Bredar has laid out his thoughts on how sentencing judges should deal with the changing legal landscape surrounding marijuana. This is important because those dumb Guidelines still recommend an enhancement for taking One Toke Over the Line. [Sentencing Law & Policy]

* Should a plagiarizing journalist be allowed to join the ranks of licensed attorneys? Con: His crime suggests low moral character. Pro: He’s going to be a master of boilerplate. [Juice, Justice & Corgis]

* Jones Day is representing pro bono a number of Catholic institutions ticked off that they might have to buy insurance that their workers might, at some point, maybe use to buy birth control pills. It’s a tremendous intrusion upon religious liberty that Catholic institutions routinely did before they decided to make a political spectacle out of it. [National Law Journal]

* A speech to Harvard Law alums about the slow death of free speech at Harvard. By “slow death of free speech” the speaker details how a private, non-governmental institution decided not to tolerate jackassery, but whatever. [Minding the Campus via The Volokh Conspiracy]

* It’s still several months until the ATL Law Revue competition. So to keep you entertained until then, check out this parody of Lorde’s Royals performed by some law students. It looks like it’s the same geniuses from Auckland Law School behind the Blurred Lines parody. Do the Kiwis have time to do actual law school stuff? Video embedded after the jump… [Legal Cheek]

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* Who says bipartisanship is dead? Senators McCain and Gillibrand hammer Obama’s nominee for Navy Undersecretary. Gillibrand went after her specifically over prosecuting sexual assaults. [Breaking Defense]

* Lawyers per capita by state. For everyone who says lawyers make the world worse, note that Arkansas has the fewest lawyers per capita and do with that information what you will. [Law School Tuition Bubble]

* A bunch of rabbis were arrested for plotting to kidnap and torture a guy into granting a Jewish divorce. This is a thing? [Wall Street Journal]

* Professor Larry Lessig thinks the administration should have made originalist arguments in the McCutcheon case to salvage campaign finance limits. First, I don’t see why this would have worked. Second, someone in Washington has to be an adult and resist the urge to make stupid arguments just because someone might listen. [The Atlantic]

* An agent is facing 14 felony counts for giving improper benefits to college athletes. For all the alleged cheating, you’d think UNC would be better at football. [Forbes]

* A Texas judge ordered a teen to move back in with a sex offender. This was a poor decision. [USA Today]

* Upon hearing former NYC Mayor David Dinkins saying, “You don’t need to be too smart to be a lawyer, so I went to law school,” the dean of New York Law School said, “So you went to Brooklyn Law School?” Which of course Dinkins did. What is wrong with NYU’s Tribeca campus? [NYLS (exchange begins at 23:00)]

* Is this related to the law? Not really. Is it the cast of Archer doing the video of Danger Zone? Yes…

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This week, the Supreme Court heard oral arguments in McCutcheon v. FEC. In McCutcheon, the Court will rule on whether certain campaign finance restrictions violate the First Amendment. ATL’s Joe Patrice offered his thoughts on the oral arguments yesterday. Today, I offer an alternative perspective.

Currently, byzantine election laws restrict the total political contributions that a person can make in a two-year period, as well as the number of candidates a person can contribute the maximum amount to. The plaintiff, Shaun McCutcheon, is a suburban Alabama businessman, the owner and founder of an electrical engineering firm. McCutcheon wanted to contribute $1,776 (a very patriotic sum, indeed) to 27 candidates across the country. Each of those individual contributions in isolation was legal, falling below the $2,600 maximum amount allowed for individual contributions. Yet, had McCutcheon done so, his total contributions would have run afoul of the maximum total allowed, currently $48,600.

Supporting political causes and candidates of your choice is an exercise of your First Amendment rights. Like all constitutional rights, though, it is subject to an overriding compelling governmental interest. In the case of campaign finance restrictions, your speech rights are trumped by the government’s interest in preventing political corruption or the appearance of political corruption.

Here, McCutcheon was expressing his political values, innocently — even laudably — participating in the democratic electoral process as he contributed up to 2600 bucks to individual candidates . . . until he supported one candidate too many. Suddenly, the First Amendment no longer safeguards his political expression. Suddenly, the threat of corruption or the appearance of corruption is so great that democracy just cannot stand if Shaun McCutcheon is allowed to give a penny more to support a candidate who shares his values….

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