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1st Amendment Update

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1st Amendment Update

While the First Amendment is most commonly associated with "free speech,” there are five distinct freedoms guaranteed by the First Amendment: freedom of speech, freedom of press, freedom of assembly, freedom to petition the government for redress of grievances, and the prohibition of an establishment of a state religion in America. These limitations on government power over individual expression and association stand at the core of the American conception civil liberties, to such an extent that we often disregard them in our day to day lives. In this course, the celebrated retired civil rights attorney Samuel B. Cohen will explore the historical purposes and present applications of the First Amendment, showing the evolution of original concepts and the ways the law has adapted to meet new concerns in light of First Amendment rights. He will provide guidance for identifying and pleading First Amendment issues in litigation, as well as talking points for discussing the First Amendment with non-lawyers.


Shaun Salmon - Hey everyone, I'm Shaun Salmon, vice president of MCLE and professional development here at Quimbee. Joining me today is retired civil rights attorney Sam Cohen. Sam is based in New York, and over his career, he has successfully represented numerous prominent activists, groups, and journalists in a wide variety of legal proceedings. Today, Sam will be providing us with a review and update of the First Amendment. This interview will cover the basics of the amendment, the original intent, and present application, recent codes and circuit court decisions, and more. So Sam, to kick things off, can you talk to me a little bit about actually breaking down the amendment? Like what did the framers have in mind at the time?

Sam Cohen - Absolutely, thank you so much, Shaun, and thanks to everyone at Quimbee for having me here to talk about the First Amendment. We're going to talk about the history of the First Amendment first because there's quite a bit in the text. It is a dense amendment. They started off the Bill of Rights with a bang. The text goes, "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof or abridging the freedom of speech or of the press or of the right of the people peacefully to assemble and to petition the Government for a redress of grievances." So there is a lot there compared to like the Third Amendment, which is just about quartering of troops.

There are five freedoms that are enunciated there, or seven depending on how you do it. But I like to think of it as five.

The first is that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof, and we're going to get into what both the establishment and free exercise clauses mean a little later. Or abridging the freedom of speech, that is the second freedom, or of the press, and we're gonna talk about that. The freedom of the press at the time of the framers meant something very different than it does today. And similarly, the fourth freedom, the freedom of the right of the people to peaceably assemble, we'll see meant something very different to the framers than it does now. And to petition the government for a redress of grievances.

So all of these things are really in the bedrock DNA of American civil culture, and we take them for granted a little bit. But I think it's important to think about what the framers really had in mind when they put all of this together. The first thing is we don't really have an idea these days of what an established church is in America because the framers were so good and the American experiment has been so good at eliminating it from our life. But in England at the time of the American Revolution, the Church of England was a state-sanctioned religion. It was the established Church of England. And what that meant was that the canon law of the Church of England was recognized and enforced by the Government of England. So if someone was say a Catholic and didn't go to a Protestant mass with the Church of England, that's something that theoretically the state could prosecute them for. Also what that meant was that this established church, the Church of England, had the exclusive jurisdiction over religious matters like marriages. So if a wedding may or may not be recognized if it was performed by a different religion.

Shaun Salmon - So I was about to ask, so if that church had exclusive control of marriages at that time, a Catholic or Jewish marriage just wouldn't be recognized at all by the state?

Sam Cohen - Well, they generally were, but the problem was that the state had the option and that it was within state power. And a theme that we're gonna see in a lot of the First Amendment rights is limiting the capacity of the state to abuse its power over what people say or believe because this is a temptation that power has. And it's not so much that England famously was nullifying Jewish marriages or Catholic marriages, but membership in a church, in the Church of England, was really a prerequisite to participation in civil society to the point where census numbers were determined by parish records. If you didn't go to the church, you weren't counted as a member of that community. And so this is something that the framers were largely people, or a majority of them, were people who came from denominations of Protestantism that were part of what had been called the Glorious Revolution in England about maybe 50, or about a hundred years before the American Revolution where the monarchy was temporarily overthrown by Puritan people who were protesting against the excesses of the government. The King Charles at the time was both religiously very intolerant and also stole a lot of people's money. And the people got fed up with it and overthrew him. And so there is a recent memory that things didn't have to be this way in England. There was a time within living memory of the people who came to America that the Church of England wasn't in charge of that. But then it went back to being that way.

So they had these tantalizing hints of what it could be and we see those in the First Amendment throughout. The limitations on assembly, the freedom of assembly in the First Amendment, like we think of as freedom to gather in big groups wherever we like, but that also was a religious issue to the people who framed the Constitution. Because one of the ways that the Church of England would enforce its sort of hegemony over religious life was by prohibiting people from having religious gatherings within certain square footages of English churches. So a congregation of Protestants that Puritans say would need to make sure that their meeting place was at least one mile from the nearest church. And this was enforced pretty heavily. Yeah, these competing religious exercises could be subject to arrest. Assemblies of over 50 persons required the king's permission in advance. And if they didn't have that, magistrates were allowed to use lethal force in order to disperse people. So people who just wanted to get together and pray the way that they wanted to pray, if they didn't have the permission of the king himself could be subject to being killed by agents of the state just for getting together and going to church. So this is a very different idea of freedom of assembly than we have today. Like this is an issue that we just don't face anymore that the framers were really concerned about because for them it was very real.

Similarly, the freedom of the press, we think of nowadays as the freedom of journalists to say what they want. But the freedom of the press really related largely to the concept of prior restraint, which people may remember from the law school. Prior restraint is the idea of the government getting to say whether or not something is acceptable to be published before it is published. Them having complete control over the dissemination of opinion and knowledge. And until 1694, prior restraint was actually the law in England that it was unlawful to make any publication without a prior license from the state. That meant that essentially anything that was printed that the state couldn't find a record that they had approved it was subject to confiscation, burning, people were subject to punishment for disseminating ideas. And it didn't matter whether or not it was true. Because, again, thinking back to this Glorious Revolution that happened about a hundred years before in England, the things that they were saying about King Charles were all true. He was in fact religiously intolerant. He was in fact stealing from people. There were valid reasons to overthrow him. And there's an idea in the law that was present in English law that we start to see in an evolution in common law with the American experiment that it's necessary for governments that people have to have a good opinion of it, and that it is acceptable for a government to use lethal force against its citizens to control that. And that's something that is, today, abhorrent to us in American society. But it was the norm that the freedom of the press was really meant to address.

And so another thing with that and another thing that they sort of had in mind at the time was this thing that they had in England called the Court of the Star Chamber, which had been officially abolished before the time of the American Revolution, but was still very much in people's memories. The Court of the Star Chamber started off as like an extraordinary Court of Appeals, essentially a court of equity, like that was appointed by the king and had representatives of the state, of the church, of the judiciary that would meet to hear extraordinary cases. And at first, it seem like a great thing. It was like an equity court or a chancery court. But by the time of King Charles, the Star Chamber became a tool for state oppression. It became a tool of the state to basically seize and punish people who were speaking things that the state didn't like. And so the memory of this was very fresh in people's minds.

And even though the Star Chamber had been abolished and the licensing had been abolished, there were still in England sedition prosecutions that happen very often punishing truthful messaging. And the term libel itself, we think of libel in terms of the legal claim of libel. That term comes from the common English word for a handbill. A libel was a single sheet that was printed and handed out. And the reason why a libel became associated with the tort of libel that we think of today is that libels were used for sort of quick printing and quickly disseminating things to try and get around the control of publication. People would hide printing presses under haystacks and barns and they would have boys distribute just a few sheets of leaflets until the magistrates found them and they had to run. Like this was the stuff that the freedom of the press was meant to address. And it's done a great job of that. Getting through the other two freedoms there, petitioning, well, the last freedom there, petitioning the government for redress of grievances. That was just something that was not a guaranteed safe practice in the past. It was something that theoretically everybody could do.

In the Bible, there are stories of people going to kings and asking them for things, but sometimes the king kills you for it. And there is no, prior to the American Experiment, there was no system with an absolute right to ask your government for things without consequences. And that was a bit of a brave experiment. Even though the right to petition is something that we tend to think of today, mostly in terms of actually deciding onto a list of names when it really speaks to a much more expansive right that is almost elusory in our everyday society because it's just such a part of our social DNA. So in some, and this is something I'm kinda paraphrasing from Zechariah Chafee, who was a great constitutional scholar back in the '40s, the intent that the framers had for the First Amendment was to wipe out the common law sedition and to eliminate the capability of the government to prosecute people for criticizing it or inciting to law-break. And as we'll see, inciting to law-breaking becomes a bit of a hairy point there.

But yeah, this is the fundamental tension that the First Amendment means to address, that it is always a temptation of the government. It's always a temptation of power to suppress threats to itself. And because power has the power, it is very tempting to do that. So we started off with these really great noble goals of eliminating sedition and this great idea for a social experiment for the country. And that was all really wonderful except that within like 12 years of the founding of the United States, or pardon me, of the Constitution, we have the Alien and Sedition Act of 1798 being passed. So that act prohibited any advocating of opposition or resistance to the laws of the United States or the acts of the president. That didn't last very long. And this is something that at the time, because of public unrest and challenges to the authority of the government, that passing the Alien and Sedition Act seemed like a very good idea at the time. That it was something. It seemed to be a compelling interest to the state to suppress. Then the Alien and Sedition Act did have some features that the English law didn't. It did allow truth as a defense as opposed to the English standard where just being critical of the government was in and of itself unlawful. And it required a showing of malicious intent. Yeah, Shaun?

Shaun Salmon - I mean, you're raising truth as a defense here and the malicious intent requirement, and it does sound like that's similar in many ways to modern libel laws. And so can you dive into a little bit like what the problem is with that?

Sam Cohen - Yeah, it is very similar to the standards that we use in modern libel laws except for one important distinction, which is that there is a content specification here, that this is specifically prohibiting specific types of speech, specific subject matter of speech, and subject matter exclusion we'll see is something that the First Amendment jurisprudence has really found to be a problem. So the Alien and Sedition Act of 1798 was installed by John Adams and it was repealed by his friend Thomas Jefferson during his next term. And we never really got a formal court determination on whether or not it was unconstitutional. The Alien and Sedition Act did provide sort of the DNA for a lot of our modern considerations of libel.

But there's one important distinction that our current conception of the First Amendment has that was not in the Alien and Sedition Act. The Alien and Sedition Act was expressly subject matter specific. It specifically penalized particular subjects of speech, which is something that we'll see in the First Amendment that we don't like to do, and that when the government is putting particular restrictions on particular speech based on its subject matter, we take an extra close look at it. So the Alien and Sedition Act was repealed very shortly after it was installed. Adams put it in, and Jefferson, the third president, he removed it. And it was never subject to a court challenge because of that. But the Supreme Court nowadays has thrown in little dicta here and there. There's one in New York Times v. Sullivan that's a particular note that said while the Sedition Act was never actually tested in court, there is a presumption that it was unconstitutional.

So getting to another one of the initial goals about the freedom of the press, I have a note here which we'll show in the slides about a quote from William Blackstone in his "Commentaries on the Laws of England" which this was really the basis of the common law in America. Famously, circuit court judges would actually ride a circuit of towns from place to place with a copy of Blackstone's commentaries on the law and would issue rulings based on that. And so Blackstone's conception of the liberty of the press was purely based on a lack of prior restraints and in freedom from century for criminal matter when published. And he had an interesting point about this, which I think is kind of a core to how we think about the First Amendment, which is that to do otherwise, to allow for prior restraint, is I'll just quote from him, "is to subject all freedom of sentiment to the prejudices of one man, and to make him the arbitrary and infallible judge of all controverted points in learning, religion, and government." I mean, I wouldn't mind if that guy was the one authority, like that just sounds great. But we understand the problem with that, if we allow one person to be the arbiter of what is true and what is not, or a group of people, then we run the risk of falling astray.

And so that idea, while we have evolved from that to some degree, this is something that the Supreme still continue to pay some homage to. And in Police Department of Chicago v. Mosley in 1972, the Supremes noted that above all else, the First Amendment means the government has no power to restrict expression because of its message, its ideas, its subject matter or its content. So this idea is still present, but we have evolved past it in a lot of ways. And I think that a big reason why we have is because a lot of the original concerns that the framers were worried about in drafting the First Amendment just aren't concerns anymore. The idea of that kind of prior restraint, as we'll see a little later, is something that is just normatively laughable to us now. And when the government of the United States tries to do it, the response to the people is tremendous skepticism. So any value that it would have in terms of being able to really suppress information is limited. So original intent isn't that useful today because the issues are different.

And this is something that, we have an old quote from Erwin Chemerinsky about this, but as a practice tip, I do wanna note to people that while, I personally have a healthy suspicion of original intent as a legal argument, you've really got to be aware of what judge you're arguing in front of and what they like. And if you're in front of a judge who likes an originalism argument, like use some of this stuff about original intent. Like find these threads in your cases. Like find these things so that your judge can, in their head, role play their part in being in the Boston Tea Party and upholding freedom. So don't just say, "Well, because this is not, you know, completely scientifically accurate, we're never going to use this in our pleading." No, think about what will win with your audience. But times, values, and priorities have changed, particularly in regard to the establishment of Free Exercise Clauses. The idea of an established religion is so far away from our understanding today that we tend to think of it in this very absolute term of a separation between church and state, which, as we'll get into, is both accurate and inaccurate. And it's getting less accurate as we go forward in time.

Similarly, freedom of the press that we think of today means something really different than what it did at the time. Most of the press freedom cases that we deal with, with the exception cases like the Pentagon Papers, deal with private individuals complaining that the press has said things about them that were maliciously untrue. There are very rare cases nowadays where the government actually tries to control what the press publishes because this right is just part of the DNA of our culture. And similarly, modern freedom of assembly goes way beyond what the framers had conceived of. Like we're not just going to church together, we're going into the streets. And like that sort of thing, marches of that sort and gatherings of that sort, it's unclear whether the framers felt that those fell within First Amendment protection. And that moreover, because of the Alien and Sedition Act coming so soon after the enactment of the First Amendment, the inconsistency of the framers' views on freedom of speech is sometimes kinda awkward.

So let's move beyond the original intent and let's get into what the First Amendment is today. And I'm gonna go through the freedoms and orders starting with the religious stuff. And in part, because frankly the religious stuff is complicated legally and it's shifting. So starting off talking about the Establishment Clause, and this is, once again, preventing an establishment of religion where the state is essentially sanctioning one religion as the official religion of the state. And that's something obviously that doesn't happen too often. We have seen some cases where it's been tried, and we'll discuss that in a bit, but more often we see laws that have some kind of a religious purpose that it get tested under the Establishment Clause. And the test that we concerned about started off as a three-prong test. This is called the Lemon test. Nothing to do with citrus. Comes from a case called Lemon v. Kurtzman. And it was originally a three-prong test that to pass the Establishment Clause muster, a statute, has to have a secular legislative purpose. It cannot just be a regulation on communing waivers. And the primary effect of the law doesn't advance or inhibit religion. So it can't be a prohibition. Well, we'll get into some specific prohibitions in a bit. I'll give you some funny examples of this. And the law must not foster excessive government entanglement with religion. And so that in Lemon was those last two prongs. The primary effect and the excessive entanglement were two separate considerations.

Since then, after Agostini v. Felton, which was a 1997 case, it's just a two-pronged. There must be a secular legislative purpose. And the entanglement and primary effect are really basically the same question. Because if the primary effect is getting involved in religion, then it is excessive government entanglement with religion and vice versa. So the examples of this, like where the states have tried to install something that seems like a state religion and just gets invalidated are cases like Edwards v. Aguillard, which is an '87 case, where the state of Louisiana tried to make the biblical conception of creation into state doctrine. Like basically making it the state position that humanity was created by God and descended from Adam and Eve. Like that is something that under the Establishment Clause is a no-no. That is having the state take the position that one religion is correct. So that's an obvious one. A somewhat less obvious one and this is sort of the way that we see the cases going is this case Zelman v. Simmons-Harris in 2002 where a school appealed a denial of benefits. It was a religious school where there was a voucher program for education where basically the state would issue education vouchers for funding to students that they could use wherever, and this religious school was not part of the voucher program. And they argued that the state excluding religious schools is a violation of the Establishment Clause by essentially arguing that it was the state adversely penalizing people based on the fact that they were religious. The reasoning of the court there is that the beneficiary of the voucher funds wasn't chosen by the state, but by the public recipients. And so they upheld the grant of these voucher funds to a religious school.

Shaun Salmon - I mean, regarding Zelman, does that seem to be like it's moving the goalposts a bit? I mean, it would seem like the state is setting up this voucher program instead of directly funding public schools, right? So is it like a back door to funding religious schools while still appearing neutral?

Sam Cohen - It is exactly that. And this is a trend that we're seeing a lot because this was something that normatively, in American society, the separation of church and state was something that was very strongly enforced at prior times in history with respect to like government funding. There was a presumption that America was essentially a Christian nation, but in terms of policy-making, it was a bit more separate and distinct. Whereas now, like there are all these different sorts of trial balloons to sort of see where the lines are. And we're gonna see a few more of those as we go forward. And particularly, with the current composition of the Supreme Court, we're seeing in these Establishment and Free Exercise Clause cases that the lines are moving and that essentially, the justices are taking these opportunities to move the goalpost. So the doctrine really is shifting in real-time.

So for free exercise, which is the state getting involved in people's exercise of their own religion, this is something where some of the cases involved, and this is something we see in a lot of First Amendment areas, involve people and behaviors that we might not want in our backyard but that are a part of people's religious identity or their political identity that the state shouldn't be involved in. And so one such case for free exercise involved the Church of Lukumi Babalu Aye versus the city of Hialeah in Florida. And so the Church of Lukumi Babalu Aye is an indigenous Caribbean religion that might be called voodoo by some people, and they conduct animal sacrifice as a part of their religious rights. They sacrifice chickens. And that is a part of their religious beliefs. They believe that it pleases the deities for them to do this. The city of Hialeah in Florida did not like that there was a voodoo church within their town limits. So they passed an ordinance that basically made it unlawful to slaughter livestock without proper permitting in a proper livestock disposal area. I don't know, abattoir? Anyway.

So the law is no killing livestock without a license in town. That doesn't have anything to do with religion on its face. But the Supremes in 1993 found that enactment by the city of Hialeah to violate the free exercise guarantees of the church because while the law itself didn't target their religious beliefs, the target of the law is to infringe upon or restrict practices, I'm basically quoting here, because of their religious motivation. And in those cases, the law is not neutral and it is invalid unless it is justified by a compelling interest and narrowly tailored to advance that interest. So these are some important words to keep in mind here, the compelling interest and narrow tailoring.

Shaun Salmon - I mean, I just have so many thoughts about this particular case. Like as soon as you said it, I was just like, "I remember." I remember this one and I mean, I feel like in this case, there's like a public health argument they could make that could like sway that narrowly tailored. And I'm curious if like anyone tried it. I don't know if you know the answer to that question. I'm just wondering.

Sam Cohen - It's really actually pretty hard to articulate a real compelling public health concern.

Shaun Salmon - For slaughtering animals?

Sam Cohen - Because for the majority of human history, the way that you got chicken was you took a chicken and you killed it. And it's not something like we don't all have grandparents who are missing fingers because of chicken killing accidents. Like we don't have people who died in the poorly-slaughtered chicken epidemic of 1918.

Shaun Salmon - It's really funny.

Sam Cohen - It grosses us out normatively. Like it's something that we would prefer not to be around, but in terms of a compelling reason for the government to regulate it.

Shaun Salmon - It doesn't hold up.

Sam Cohen - Our finer feelings don't qualify.

Shaun Salmon - It's really interesting.

Sam Cohen - And to the extent that the government was concerned about that, that there are ways that the government could, they're less restrictive and more narrowly tailored meats. For example, I'm Jewish. I'm not a practicing Jew, but in Jewish religious law, there are dietary laws about how animals are slaughtered for preparation for food. And there are religious authorities who are certified to kill animals for food purposes and they undergo state sanitation licensing. So that is a less restrictive means than just say you can't do this in our town. That does actually accomplish the goal of reducing whatever degree of unsafety there is from unsupervised slaughtered chickens.

Shaun Salmon - You got it the exact, and using the example of Jewish, I mean, rabbinical, right? And like kosher foods and stuff was a great way to kind of give an example of that that a huge number of people in America now would really recognize. And you're talking to someone who doesn't eat chicken.

Sam Cohen - Well, I figured it. This is fundamentally a continuing legal ed class. I figure the Jewish representation here is gonna be a little over of the American average. Like just playing the actuarial tables.

Shaun Salmon - No, for sure. Well, I'm a non-practicing Catholic, so we're two non-practicing right here.

Sam Cohen - Yeah. Well, so let's get back to the free exercise of religion or our right not to as the case in place.

Shaun Salmon - Well, actually that was the other thing here that I wanted you to like comment on because you're talking about this case here that really tells us that the people who are arguing and that the Supreme Court and the circuit courts are ruling in favor of, they're not always likable, right? Like that doesn't matter. So can you talk about that just a little before you move on to a sort of establish really versed this free exercise?

Sam Cohen - This is something that we see in a lot of areas of constitutional law and First Amendment law that very often, the disputes of the really unpleasant people are the ones that really establish these things. I mean, we're gonna talk about Brandenburg v. Ohio a little later, which is the case that set up the imminence requirement for their being a prescribe ability to speech that indicates violence. Pardon me. We're gonna talk about the Brandenburg case a little later, which sets up the imminence requirement in First Amendment law for speech that indicates a propensity to violence for it to be prescribable. And that case involved recordings of members of the Ku Klux Klan, like talking about burying N-words and like marching on Washington. A lot of stuff that is like both shocking and also that really kept rings a bell nowadays as things of concern. But the rights underlying this and the way that the state goes after it are also of concern to us. And so that is kind of the normative balance that we engage in a lot with this, is that we do, for these rights to be real, they need to apply it to everybody even to Ku Klux Klan. And in the case of something like a voodoo church, like there that's something, the people who are members of that, it's strange to us, but they're not doing anything wrong. They're just living their lives the way they were brought up to. And for the state to take action against them simply because people don't like it is something that normatively I think we want the government to step in on their behalf. But it means that sometimes, the government has to defend people who we think of as the bad guys.

Shaun Salmon - Simply because we like chickens, for no other reason, right?

Sam Cohen - Yeah, that's what they say. And so this is a theme that we can work on a bit here that when we are bringing cases to the court, we each have our own story. Nobody wakes up in the morning and says, "It's a wonderful day. Everything's going my way. I'm gonna get a lawyer and sue somebody." Something has happened and we have our way of looking at it and the other side has their way of looking at it. But as an attorney, when you're pleading things, you should be both thinking about what the contours of the law are because under following Iqbal and Twombly with the raising of the 12 b6 pleading standard in federal courts and a lot of state courts kind of following suit similarly.

Getting this sort of narrative and these themes set up in the pleading stage of cases is really important because the story will really determine whether or not the court and an eventual jury is sympathetic to your client or not. And thinking about what aspects of a story emphasize these rights versus what aspects of a story emphasize elements of your clients that the public might find unappealing is a really important thing to consider. I do want to just blast through a little bit more of the free exercise stuff before we go. I've got some recent case law on that that I wanna get through which sort of shows this continuing shift of the Supreme Court towards a more expansive view of free exercise. A 2017 case, Trinity Lutheran Church of Columbia, Inc. v. Comer, this case involved a state program to subsidize the conversion of playgrounds from gravel to rubber. From when we both grew up, we had the tree as greater playgrounds, and the state of Missouri decided that the next generation of kids don't need callouses. So they set up a program to pay for that. And a preschool that was run by this Trinity Lutheran Church, the way that it was put before the court, they otherwise qualified for the program, but they were denied because it was a preschool run by a church.

So in reversing this based on free exercise and in allowing the state program to apply to this preschool run by the church, the court noted two things in Missouri. One in the Constitution, the Constitution itself at Article 1, Section 7 expressly forbids any disbursement and aid of church or clergy. So that is, once again, this kind of like opposite of free exercise. The idea of someone being excluded because they're religious were otherwise, and this is sort of borrowing from equal protection the way that they talk about it, but otherwise, they're similarly situated with applicants who did get the funding. And the other thing they pointed to was that there was a strict and expressed departmental policy of the state department of denying grants to any religious entity. And that was also found by the court in Comer to violate free exercise.

So the goalpost really have moved rather quickly from this case in 2003 through Comer in 2017. That now, that free exercise inquiry today, looks a lot more like an equal protection inquiry. And it looks more at whether people are being denied, things that other people receive based on the fact that they are religious. And so another case that was sort of famous recently on free exercise that wasn't actually really that much on free exercise was the Masterpiece Cakeshop case versus Colorado Civil Rights Commission back in 2018. This was the gay wedding cake case that made a lot of attention at that time where the Supreme Court found that the Colorado Civil Rights Commission penalizing this baker for refusing to make a gay marriage cake was a violation of free exercise guarantees. But that isn't as dramatic as it sounds because Justice Kennedy wrote the decision on this and it is a real masterpiece of writing the decision to be very clearly limited on its facts. One thing that was important to note is that at the time of this case when it was happening in 2012, both in Colorado and in the US, the United States generally, the state of the law as to gay marriage was unsettled. It was not something that was a legally recognized right in and of itself. So that in and of itself changes the posture from anything that would happen nowadays. And also there is something that I kinda think is a bit of sleight of hand. Some of the commissioners on this commission made comments in hearings that were reproduced in the Supreme Court opinion that were read as disparaging the petitioner's faith.

Shaun Salmon - Like how badly, how badly disparaging?

Sam Cohen - People will differ. I'll tell you what they said. The commissioner in question said that it is despicable rhetoric for someone to use their faith to hurt someone else. And Justice Kennedy, he explained that he felt that this was disrespectful in a couple of ways because by saying it's despicable, it's implying that the person's faith is despicable, which like arguably a faith that says that you should be cruel to other human beings. I think the argument can be made. But people can differ.

And also by saying that it's a rhetoric, he's implying that the beliefs are not sincere. So these are things that I personally if I was in the robes on that, I wouldn't find those to be so concerning, but I can see how someone else might. So the thing is that this case didn't actually do anything. The remedy at issue in the case was that the policy of the Colorado Civil Rights Commission was explicitly changed. They had anti-discrimination training and compliance reviews. There were no monetary damages. The cake baker didn't get anything out of it. And the state recognizes gay marriage. So like this sort of a thing isn't happening again, but it is something that made a lot of hay. And there's another point in here which I think is kinda important, which I have the slip op pagination in my slides. I haven't been able to find a formal reporter version of this case yet.

The-another thing that Kennedy did that was a bit troubling was that he pointed out that the commission made determinations previously that supported the rights of bakers to not bake cakes that included hate speech about homosexuality and made it out as if that was like equivalent, that those bakers were protected, who were being told by people to write things that were homophobic and mean on cakes. Whereas the guy who was being asked to make a cake that didn't comply with his beliefs wasn't. But compelling people to engage in hate speech versus compelling people to serve all customers are two different things. And there is no real implication of free exercise rights in limiting hate speech.

So just to finish up with the religious freedom for a bit, yeah, this is something where we're going to expect continuing shifts as the judiciary moves to the right. And another thing that people need to look out for is statutory clauses. Because with things like the Religious Freedom Restoration Act, there are legislative means that raise the levels of scrutiny in certain jurisdictions and in certain cases for certain types of cases involving religion or speech issues. And so knowing in your jurisdiction what the specific levels of proof are beyond the constitutional bare minimum is really important. Just knowing the constitutional law is not enough right now, and it is something that we are seeing a lot of inconsistent judicial reasoning in recently. But the normative results tend to be fairly on a continuum. And it is something that you can get a general sense of how things are going.

So I wanna blaze through political and commercial speech, which what we think of as political and commercial speech today is a lot of what we think of as freedom of the press. And as we've discussed before, that is not what was conceived as freedom of the press at the time of the framers. But today, the basic standard for political and commercial speech for libel in defamation claims under First Amendment protections is set out in New York Times v. Sullivan. Truth is an absolute defense to libel in defamation and that the burden in these cases is with the claimant to demonstrate malicious falsehood. Essentially, the presumption of the court is that it is not libel. It is not malicious. And the claimant has to prove otherwise. And the New York Times v. Sullivan was a case that involved the New York Times publishing an advertisement that was critical of a police official named Sullivan in Alabama and contained what he claimed to be false speech. And there it was claiming that the New York Times had a duty to essentially check the veracity of anything before it printed it. And in New York Times v. Sullivan, they held that there's an actual malice standard, that there has to be with knowledge that it was false or reckless, but disregard as to whether it is false or not. Statements in question were signed statements. They had the names of the persons who gave them attributed under them. And it was in a paid advertisement. It's clearly not the opinion of the Times.

So this was the case that kind of set the baselines for libel in defamation. And this is something that, in the slides, you can kinda get into this in more detail. I have cases for you that extend this out. Sullivan set up the standard for public figures, the actual malice standard. If someone is a private figure and someone else is libeling them or defaming them, the standards can be lower. And this is something that in Gertz v. Robert Welch in '74, the Supreme Court expressly recognized that for private individual claimants, the New York Times v. Sullivan actual malice standard doesn't need to apply. States can have a lesser intent requirement. There can be just recklessness. But negligence is still generally frowned upon. So one of these funny ones here is that this actual malice standard in Time, Inc. v. Hill in '67 they pointed out that it applies to the false light invasion of privacy tort.

Shaun Salmon - I mean, does false light ever actually come up?

Sam Cohen - Because of this, it doesn't. It doesn't come up much because of this constitutional guarantee. I had a client once who was a supermodel and on the red carpet of the Met Gala, she had a wardrobe malfunction that was captured by the paparazzi. And she came to me crying the next day, and it was the first and only time that a client has ever made me look at pictures of them there, but wanted to sue the photographer and everybody who posted this. And I had to explain to her, "Well, I need you to look at this picture. Are any of your parts depicted in a way that isn't accurate?" And she's like, "Well, no." I'm like, "Well, it is not depicting you falsely with malice so it is not actionable. You are in public. It's really unfortunate and embarrassing that this happened, but you cannot sue this photographer for taking these photos." So it doesn't come up so much in court as it does with clients. And it is something that I think that people normatively have an idea that there is a lot more legal redress available for people saying things that make them feel bad or doing things that make them feel bad.

Shaun Salmon - Of course, that showing pictures that make them feel bad.

Sam Cohen - Yeah, which, I mean, unfortunate situation, but it all worked out okay in the end. But yeah, and similarly, and this is funny, it was Hustler v. Falwell in '88 that found that there was an actual malice standard for the intentional infliction of emotional distress, which I find hilarious because, in as much as Jerry Falwell is not my favorite historical figure, I think that the way that Larry Flynt went after him was very definitely with actual malice. It was gleeful malice, but it was very, very malicious. And so, again, we have really bad people making important law.

Shaun Salmon - And really quickly, before you move on, like in the post-Sullivan era, can you make the distinction between something like actual malice, gleeful actual malice, that was really funny, and willfulness? Like how does that play out?

Sam Cohen - Well, I mean, the actual malice standard is as to the truthfulness of the statement that it is a maliciously false statement made with actual malice. And so willfulness and actual malice do collapse there. That if you are willfully making a false statement about somebody in the public in a way that is disseminating, that damages them, and you know it's false, then malice is imputed. And more of questions come down to reckless disregard. Like what degree of checking would be enough to satisfy that bar that it was not reckless. But really a lot of the speech cases that have followed this have been less about the content of speech of that way and more about government restrictions on speakers in larger and more profound ways. Because New York Times v. Sullivan did note that speech relating to matters of public concern, even if it's critical to the government, and this gets back to the framers at the core of free speech protection. And so speech on matters of public concern automatically is getting a higher standard.

But in Turner Broadcast System versus FCC in 1994, they found that commercial speech, essentially having a cable station that broadcast, also has First Amendment protection. And that discrimination on the basis of content is the real point of most First Amendment inquiries into restrictions on speech. And there, Turner was suing the FCC because at the time cable was still a very new thing and the FCC was regulating TBS, the Turner Broadcasting System, the first big cable superstation, very differently than it regulated broadcast stations. And so Turner turned that into a free speech issue and found that because it was the specific, the basis of that, it was the time, place, and manner. It was the manner of transmission via cable instead of via broadcast that was causing them to treat speech differently. So when things involve matters of public concern, strict scrutiny is implied. And when there is content discrimination, discrimination based on the specific substance of what is going on, that also triggers strict scrutiny.

The United States versus Playboy case that really established that least restrictive means was required for any content-based regulation is an interesting case. In that case, at the time, the law in the United States was that broadcasters had to limit adult content to only playing between 10:00 pm and 6:00 am to prevent kids from being able to see it. And Playboy had a skin channel that they wanted to be able to play 24 hours a day. And so they sued saying that based on their content, they are being discriminated against. And the court agreed in part, and I believe this is another Kennedy decision. Kennedy noted that the 505 Section of the code that this restriction was in, the 10 to 6 restriction, was immediately proceeded by a section that had a lockout provision where parents could call up their cable provider and tell them not to provide certain channels. So just limiting pornography from 10:00 pm to 6:00 am is more restrictive of a way for the government to reach its compelling interest. It is a compelling interest of keeping kids from watching pornography, but there's another means there that is less restrictive and it is, as it happens, in the prior section. So it is something there that was invalidated. When there is something that is a legitimate, but not a compelling government interest, content-neutral regulations still need to be narrowly tailored, but it does need to be the least restrictive way of doing it.

This was explained in this case Hill versus Colorado, where the state of Colorado found that their way of stopping people from harassing women going into abortion clinic was a First Amendment compliant. And they really had to thread the needle for this one. The statute forbade any person within 100 feet of any health center entrance to knowing the approach within eight feet of another person in that zone without their consent to engage in expressive activities, including protest and education, with respect to that other person. So this is to address the fact that anti-abortion protestors like to bother people outside of abortion clinics. And they found that they could not simply regulate that and say you're not allowed to bother people outside of abortion clinics because that is a content discrimination and it's a time, place, and manner restriction that isn't narrowly tailored. But by using this very legalistic language, they do manage to get the conduct that they are trying to prescribe into a legal protection or into legal prohibition I should say. And the statute was found to be content-neutral because it was drafted in this very careful way. So yeah, this sort of a time, place, and manner restriction is to sorta pass this constitutional muster.

Another one, a recent case of a time, place, and manner restriction that pass muster was the Morse v. Frederick case in 2007. This was the Bong Hits 4 Jesus case in Alaska where a kid at an off-campus event held up a banner saying Bong Hits 4 Jesus. And he was penalized under a school policy forbidding the advocacy of illegal drugs. So the tricky thing here was this was not on school property. And also sort of the classic case of school regulation disruption is Tinker v. Des Moines, found that students wearing armbands to indicate their protests against the Vietnam War in school itself wasn't a substantial enough disruption. Like even though at the time in the '60s, that was something that was pretty disruptive. It could lead to a lot of problems. Versus that here, just holding up a banner that said this for a short time was found to be prescribable.

Shaun Salmon - I mean, what's the difference? Why is it different to the court?

Sam Cohen - So two big differences. One is that the Vietnam War was a matter of public concern that people were debating very openly at the time versus it is the official position of the state of Alaska that illegal drug use is harmful and that it is the policy of the state to try to deter children from using drugs.

Shaun Salmon - Even in the name of Jesus.

Sam Cohen - Yes. But yes, even if. I couldn't even speculate on that. But here, the school had a compelling interest in keeping kids off rocks under the state policies that the court was willing to accommodate. So it was like it does seem a little different than Tinker, but we see that those core principles are still enforced in a case that just came down just last year.

This Mahanoy Area School District versus B.L. case where this is a case that, like I don't have any teenage daughters, but wow, I really feel for the bomb here. A girl didn't make the cheerleading squad, and then from a convenience store posted a Snapchat off-campus outside of school stating F school, F softball, F cheer, F everything. And the school found out about it and tried to suspend her for a year for doing that, for just venting after not making the cheerleading team. And there it was found that this was absolutely not proper and that this was a violation of student speech. And the important points were this was off-campus and it was not at an off-campus student event. She was just off-campus. Like she was not within the school's jurisdiction in any way. A lot of these ideas of regulation of school speech come from an idea that the government is acting in loco parentis like they're acting as a substitute parent for the child in that moment. Here, they didn't have any obligation to do that.

And also, starting with Tinker, the allegation of actual disruption is really important. And so to the extent that the government is ever trying to make any of your clients out to have violated some kind of incitement or speech regulation, like making sure that you get really granular on what the disruption was is gonna be important because here, the disruption that was alleged was that in this girl's algebra class, there might be five or 10 minutes of discussion for a few days of this issue. And that doesn't sound like much the way the court put it, but five or 10 minutes out of a 40-minute class talking about some girl's off-campus Snapchat for several days is actually a pretty substantial disruption of learning. And it's something that depending on how you cast it could really be a problem. So we're running out of time, but we do need to talk about obscenity a little bit. Obscenity doesn't fall within First Amendment protections and obscenity is defined under the law in Roth v. United States as material which deals with sex in a manner appealing to prurient interest. And I don't know what prurient means anymore in youth. It is not subject to First Amendment protection, but the First Amendment does prohibit criminalizing the possession per se of obscene materials. If you just have something in your home that's obscene and you're not doing anything with it, the government can't intrude into your zone of privacy just to regulate that obscene material out of your home. Except for child pornography, where there is a compelling interest in the safety of children that allows the state to do exactly that.

Shaun Salmon - I have a question for you on the I know it when I see it, and the Supreme Court clerks jokingly stating like, "I'm seeing it," when looking at pornographic movies in conference for court. But can you just, for everyone now, like to break down the difference between the I know when I see it for pornographic materials and the very clear interest and why child pornography is governed so much more?

Sam Cohen - Yeah, well, Justice Potter Stewart famously said of obscenity I know it when I see it, which is a very authoritative and compelling way for a judge to say, "I have no idea what it is." And so it became a joke because over the '60s the Supreme Court had to watch a lot of dirty movies to determine whether they were obscene, that the Supreme Court clerks would all sit down together and watch these pornographic movies together and when one of them saw something that they thought was obscene, they had just cried out, "I'm seeing it." And it was a joke among them but became kinda notorious. But there, I mean, we don't have that many obscenity challenges anymore. And a lot of what is just frankly available on the internet nowadays is a lot of things that would be considered obscene by the standards of the '60s. But there is an issue here, which is consent, and this is something that is, there's a very strong argument that this is a very compelling interest to the state because it is the position of our society that children aren't capable of consenting to involvement in these activities. And that it's a moral harm to try to induce them into it. And I agree with all that the way I'm saying that is kind of equivocal, but no, I absolutely believe that. But it is something that is a line that we draw that is a special circumstance and it is a balancing of interest. And fundamentally, we see that in a lot of First Amendment law that we do want to prevent the government from overreaching, but that we want to find the balance between the amount of government supervision that is appropriate and what isn't, and normatively that changes over time. And this is something that we see in the way that speech restrictions on fighting words or breach of the peace have kind of evolved. Starting with Chaplinsky in '42, like fighting words, words to induce someone else to hit you or to start a fight are not protected.

Moving on to Feiner v. New York, we start to see this imminent breach of the peace where like the speaker in question in that case, the crowd had actually threatened to attack him. The police said, "Hey, you gotta stop this. They're gonna attack you." He's like, "No, I'm not gonna." Where they said, "You are going to get attacked." He said, "No, bring it on." And in the Brandenburg case, which, as we noted before, involved the Ku Klux clan, involved members of the Ku Klux clan saying things like burry N-words and we're going to march on Washington and take revenge and things like that. The imminence requirement gets broken down to advocacy, what is prescribable as advocacy, that is directed to inciting or producing imminent lawless action and is likely to produce such action is noted in the Brandenburg case that these are videos of these Ku Klux Klan officials just standing in the woods talking amongst themselves about these things and just kinda talking to themselves. Like they are not whipping up the mob at that moment. They're talking about things that they're gonna do in the future that the court finds to be speculative. I mean, and that seems like a pretty thin branch to hang things on, but it becomes a pretty important principle. And this is something that the court in Brandenburg, and this is something that in footnote four of the case at 449 in the reporter, it's emphasized that statutes affecting speech and assembly have to respect what is referred to there as the established distinction, which is some real judicial sleight of hand because they're establishing it there between mere advocacy and incitement to imminent lawless action. And the prosecutions around the January 6th case show that that can be a really hazy line.

And so this is something that, Erwin Chemerinsky again, he had some concerns about. Like that the Brandenburg test, which is still something that we deal with today like might not really be durable because it starts off from a very speech protective position and people have learned their way around it. So in the slides, we have some stuff about an interesting First Amendment issue that wasn't resolved as a First Amendment issue. We don't have time to get into it today, but all the case law is in your materials. One new First Amendment issue is whether printable firearms schematics information that's distributed, that has a program that will cause a machine to print a gun for you whether that falls under First Amendment protection. And it is something that, where it was found in the lower courts, that the state did have some compelling interest in regulating this. But the Trump administration withdrew their challenge to it and settled the case. And it is something that is a bit of a hazy issue right now, but the way that the laws are currently set up on it is definitely not well set up under the First Amendment. And the regulations around weapon parts are going to need to be revised to deal with First Amendment protections in upcoming years as the capability to produce a weapon that can kill many people becomes something that can be disseminated through stuff that is recognized as speech by the Constitution. So we're gonna finish off here with some restrictions on free speech today.

The one set of particular speakers that are subject to notable limitations based on who they are is government employees. And this gets kinda confusing. In the 2006 case of Garcetti versus Ceballos, it was found that government employees working within the scope of their duties don't have First Amendment protection for the statements they make in the scope of their duties. But at the same time, and this goes back to Pickering versus Board of Ed in the '60s, government employers are forbidden from taking adverse action against employees for speech on matters of public concern. So you kinda see the conflict there, right? That what is a matter of public concern, what is within the scope of duties can be defined in a lot of different ways. And so once again, we have a balancing test that has come up that was initially announced in this Mount Healthy School District Board of Ed versus Doyle case in '77. It's been raised by statute. I'm gonna talk about the statutory requirement that obtains now. Slides do have the site to the Mount Healthy case.

Initially, the government employee claimant has to make a showing that their conduct was constitutionally protected and then adverse action taken against them was substantially based on that conduct. And if they make that showing, then the burden shifts to the government, and this is the part that was raised by statute. Then once the burden shifts, the government has to show by clear and convincing evidence that they would've reached the same determination in the absence of the protected conduct. And this raises the standard from a simple preponderance that we're going beyond 51% here. Like once that initial showing is made, that the conduct was constitutionally protected, then the burden goes on to the government to show that they had an interest in regulating it. So one final thing about this balance, just to kinda wrap things up, the concerns about prior restraint and established church and things like that that the framers had seem very distant today. But they really aren't. And these things do keep coming back up. And this is the case that didn't make any of the reporters, but back in 2018, Jim Acosta, the CNN reporter, asked President Trump some questions at a press conference that made him unhappy. So the Trump White House then announced the revocation of Acosta's hard pass for access to White House press things, and it was challenged in court by CNN. The case was heard before a Trump-appointed judge, Timothy J. Kelly, and I'm speculating here, I'm making up a story in my head that Trump was figuring that he's in front of his judge, in his town he's president like he's gonna be upheld that he doesn't want this scumbag in there. But at the temporary restraining order hearing, his own appointed judge found that the revocation violated due process. The very least, it didn't even get into the prior restraint issues, but just that there wasn't any kind of a real formal way to do this and said, well, this way that you did it didn't work because it violated due process. We're not even gonna get into the First Amendment. And then the White House abandoned the effort after that. And this is the power of the First Amendment today. It's not just in the cases that go forward and the cases that get decided by the Supreme Court, but in the little ways that power attempts to overreach itself, they get prevented day in and day out by these norms that over the last 220 years have really become part of the DNA of our society. So inside and outside of the courtroom, the First Amendment is super important in everyday life in ways that the framers could not have imagined and in ways they would make them very happy.

Shaun Salmon - Yeah, I mean, I was going to say, like I think that the CNN case is a really interesting like summing up point on this entire conversation. So first, I just wanted to say thank you so much. I know we covered so much today and honestly, I always found con law fascinating. It was one of my favorite courses in law school. So I love talking to constitutional rights attorneys and civil rights attorneys that do this for a living. And so I guess the only thing I wanted to ask you was, do you wanna share with the listeners any way to contact you? Do you have any social you wanna shout out? Anything else you wanna share before we sign off?

Sam Cohen - Yeah, thank you, I am retired from the practice of law since 2019, and I am a strategy and communications consultant these days in New York. You can get in touch with me through LinkedIn. My LinkedIn is SamCohenNYC, all one word. And you should recognize my smiling face when you find the right one. But thank you so much for this today. Let's do it again next week. Talk about the 14th Amendment.

Shaun Salmon - No, let's definitely do it again next week. Thank you so much, Sam. Have a great day.

Sam Cohen - You too, thank you.

Shaun Salmon - Bye.

Sam Cohen - Bye.

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