Category: Free Speech

  • Georgia’s Asymmetric Contribution Limit Likely Violates First Amendment

    The Eleventh Circuit ruled last week that Georgia’s campaign-finance law that allows incumbent governors and lieutenant governments to raise funds without limit, while at the same time limiting contributions for other candidates, likely violates the First Amendment.

    This bottom-line ruling isn’t surprising: the First Amendment flatly prohibits asymmetrical contribution limits.

    But the lawsuit is.

    The case, Jackson v. Jones, arose when billionaire Rick Jackson sued Lieutenant Governor Burt Jones to stop Jones from benefiting from the asymmetrical contribution limit. (Jackson won the nomination for governor in the Republican primary runoff yesterday.)

    Jackson had an easy case to make that Georgia’s law violated the First Amendment. But he had a harder time persuading the court that he sued the right defendant. That’s because Jones argued that he wasn’t a state actor and therefore wasn’t subject to the First Amendment.

    The court disagreed. The court said that Jones only enjoyed unlimited fundraising opportunities because he was the lieutenant governor–one of two offices that Georgia law grants unlimited fundraising opportunities–and “a proper defendant in his official capacity.” According to the court, it wasn’t an answer to say that Jones was running for office in his private capacity: “Jones as a private actor would have no access to the advantages offered by a leadership committee. Only Jones as a government actor–the sitting Lieutenant Governor–can raise unlimited funds and spend those funds directly on his campaign.”

    Chief Judge Pryor dissented, arguing that Jones should have sued the state agency who enforces the law, and that he should have sought different relief–that the cap that applied to him, Jones, was unconstitutional. Chief Judge Pryor said it wasn’t “difficult to see why” Jones didn’t sue the agency for this alternative relief: “Because Jackson is ‘self-fund[ing] his campaign,’ it would do him little good to enjoin the enforcement of any contribution limits against him.”

  • Sixth Circuit Says School Board Violated Speaker’s Free Speech Rights

    The Sixth Circuit ruled today that a public school board president likely violated the First Amendment when she shut down a speaker at a board meeting for “calling people names” and spreading “baseless accusations.”

    The ruling prohibits the board from restricting the speaker at future meetings. It also marks the first time that the Sixth Circuit applied the “heckler’s veto” doctrine to speech in a limited public forum.

    The case, Boddy v. Grech, arose when Darbi Boddy addressed the Xenia (Ohio) Board of Education during the public-comments period of the Board’s meeting. Boddy delivered a prepared speech that criticized the superintendent for reprimanding a Board member who sought an audit of the schools’ supposed teaching of critical race theory. Board President Mary Grech took the microphone from Boddy mid-speech and the Board then recessed.

    Boddy sued, arguing that Grech’s and the Board’s actions violated her free-speech rights. The district court ruled that she failed to demonstrate a likelihood of success on the merits (and therefore denied her motion for a preliminary injunction). The Sixth Circuit reversed.

    The court ruled first that Grech’s and the Board’s actions amounted to impermissible viewpoint discrimination in a limited public forum. “The evidence in the record demonstrates that Grech curtailed Boddy’s speech because Boddy shared views critical of the Board and [the superintendent].”

    The court went on to say that Grech’s actions ratified a “heckler’s veto” over Boddy’s speech. A heckler’s veto occurs when an official shuts down protected speech based on the audience’s reaction–a First Amendment violation. In this case, the court said that Grech shut down Boddy’s speech in part because of the attendees’ reaction to it. Instead, the court wrote, “she could have used her authority to quiet the crowd instead of Boddy.”

    This case is the first time the Sixth Circuit applied the “heckler’s veto” doctrine to a limited public forum. The court said that “its application flows logically from our First Amendment jurisprudence.”

  • No First Amendment Right for Media to Attend Executions, says Seventh Circuit

    The Seventh Circuit ruled that media outlets do not have an especial First Amendment right to attend executions. The ruling, along with Indiana’s law, sharply limits press access, reporting, and oversight on executions in Indiana and other Seventh Circuit states that similarly limit the number of observers to executions.

    The ruling means that Indiana can continue to restrict the number of individuals who can attend an inmate’s execution, including up to five individuals invited by the prisoner, without ensuring media attendance. At the same time, the ruling acknowledges that a prisoner could invite media representatives as part of their allowable five-person invitation list.

    The case, Associated Press v. Neal, tested Indiana’s law that specifies a limited number of individuals who can attend an execution. The list includes “up to five people invited by the inmate” and “up to eight of the victim’s immediate adult family members.” Ind. Code Sec. 35-38-6-6(a). The law does not specify that media can attend, but it also does not prohibit media from attending as part of the inmate’s invitees.

    The plaintiffs, a group of media outlets, claimed that the law violated their First Amendment right to access government proceedings and their First Amendment right under the Press Clause.

    The court first rejected the plaintiffs’ First Amendment claim based on their right to access government proceedings. In order to succeed on a traditional right-to-access claim, the court wrote that the plaintiffs had to show (1) “experience” (that “the place and process have historically been open to the press and general public”) and (2) “logic” (that “public access plays a significant positive role in the functioning of the particular process in question.” Press-Enter. Co. v. Super. Court (1986).

    The court said that the experience-logic test didn’t apply to executions, however, because the Supreme Court had only ever applied it “to traditional aspects of criminal proceedings.”

    But even if it did apply, the court held that the plaintiffs couldn’t satisfy it. As to “experience,” the court ruled that executions haven’t “historically been open to the press and general public.” As to “logic,” the court said that “public access to executions does not clearly play a ‘significant positive role in the functioning’ of the process.” Moreover, the court noted that “allowing uninvited strangers with no immediate connection to the underlying crime to watch a prisoner die risks offending the dignity of their final moments.” (The court also noted that it didn’t have to decide the “logic” question conclusively, because the plaintiffs couldn’t establish “experience.”

    The court also rejected the plaintiffs’ claim that Indiana’s law violated the First Amendment’s Press Clause. The court said that members of the media don’t have any especial rights under the First Amendment (any different than anyone else); that the law didn’t treat the press any less favorably than other members of the public; and that the law therefore didn’t violate the Press Clause.

    Judge Jackson-Akiwumi dissented:

    A government exercises its greatest power when it ends a person’s life. As I see it, such severe and irreversible punishment on behalf of “the people” must be observable to comply with the Constitution. Why? Because the First Amendment protects an informed public’s scrutiny of historically open government activities. And the Eighth Amendment guarantees a condemned inmate the right to be free from cruel and unusual punishment.

    These independent protections meet in the execution chamber. There, the government’s authority is at its peak and so is its accountability to its citizens. Transparency and checks on government power are essential in this context.

  • Court Stops National Park Service from Removing Protestors’ “8647” Flag

    Judge Randolph D. Moss (D.D.C.) issued a temporary restraining order yesterday preventing the National Park Service from revoking the demonstration permit of a protestor or removing the protestor’s flag, which included the numbers “8647.” The court rejected NPS’s arguments that the flag amounted to a true threat or incitement.

    The ruling is temporary, so the court’s assessment goes to the likelihood of success on the merits (and not necessarily the actual success). Still, it’s hard to see how NPS could prevail as the case moves forward.

    The case, Accountability Now USA v. Griess, arose when NPS officers instructed protestors to take down their “8647” flag from their 24/7 protest tent and threatened to revoke their free-speech permit if it reappeared. Accountability Now amended an existing complaint against NPS (for threatening to revoke the permit for other yet other signs that the organization displayed at the site) and sought a TRO.

    The court ruled that Accountability Now was likely to succeed on the merits of their free-speech claim. The court first noted that content-based restrictions on speech, especially political speech, are inherently suspect and generally invalid under the First Amendment. It then rejected NPS’s arguments that the flag represented a “true threat” or “incitement,” two exceptions to the First Amendment’s general prohibition on content-based restrictions on speech.

    “‘True threats’” encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” Virginia v. Black (2003). In assessing whether a statement constitutes a “true threat,” courts look to the entire factual context of the statement. A statement must meet both an objective standard and “a subjective mental-state requirement . . . .” Counterman v. Colorado (2023). As to the subjective standard, a speaker must “consciously disregard[] a substantial and unjustifiable risk that the conduct will cause harm to another.” Id.

    The court said that the overall context of the flag didn’t meet this test. It pointed to a dictionary definition, which said that “86” mostly means “to throw out” or “to get rid of”; the fact that the flag contained no symbol of violence and was part of a months-long demonstration demanding “the impeachment and removal of President Trump”; and the fact that a protestor earlier told an NPS officer that they “want[ed] Trump to live forever” so that he could “rot in jail.”

    “Incitement” is speech “directed [at] producing imminent lawless action and likely to incite or produce such action.” Brandenburg v. Ohio (1969). Like “true threats,” “incitement” also depends on context. It also requires the speaker to have “specific intent, presumably equivalent to purpose or knowledge.” Id.

    The court ruled that the flag didn’t meet this test, either. As with “true threats,” the surrounding context showed that the flag did not constitute “incitement.”

  • No Right to Post “Crass” Statements by Coast Guard Auxiliarist

    The Seventh Circuit ruled yesterday that a Coast Guard Auxiliarist’s “Crass” Statements on social media are not protected by the First Amendment.

    The case, Wenzler v. United States Coast Guard, arose when Coast Guard Auxiliary member James Wenzler posted a series of offensive statements on LinkedIn. After warning him, the Auxiliary suspended Wenzler, initiated formal disciplinary proceedings, and ultimately removed him from his position.

    Wenzler sued, arguing that the Coast Guard retaliated against him for engaging in protected speech. The district court ruled for the Coast Guard, and the Seventh Circuit affirmed.

    The court applied the familiar Connick/Pickering test for free speech for public employees. Under that two-part test, courts first ask if a public employee’s speech was on a matter of public concern. If not, the speech is unprotected. But if so, courts then balance the speaker’s interests “in commenting upon matters of public concern” against the government’s interest “in promoting the efficiency of the public services it performs through its employees.” Pickering v. Board of Education (1968).

    The court assumed that Wenzler’s speech touched on matters of public concern. It then ruled that the Auxiliary’s interests outweighed Wenzler’s:

    Given the uncontested facts before us, the Auxiliary could have reasonably determined that Wenzler’s speech and actions would be detrimental to the Auxiliary and its reputation. He served in a leadership role, and the example he set matters. The Auxiliary could have reasonably expected that other Auxiliarists would be less likely to work with Wenzler, or at least to work well with him, following his derogatory comments and attacks on others. Wenzler’s statements alarmed at least two members of the public enough to notify the Auxiliary. On this record, the Auxiliary could have been justifiably concerned about its negative impacts to its reputation and, in turn, its recruiting and retention. In the long run, its ability to serve the public might suffer, or at least the Auxiliary could have reasonably believed so.

    The district court properly found that the Coast Guard’s reasonable determination that Wenzler’s speech could undermine the Auxiliary’s mission outweighed his interest in the statements he made.