"Business as Usual" For Originalism?

I've argued at length elsewhere that three of the highest-profile cases of the Supreme Court's October 2021 term marked a shift away from an originalist approach to constitutional interpretation. In Dobbs v. Jackson Women's Health Organization, New York State Rifle & Pistol Association, Inc. v. Bruen, and Kennedy v. Bremerton School District, the Court set forth a "history and tradition" approach to determining the scope of constitutional rights. In doing so, the Court elevated historical practices to a level at which these practices define the scope of constitutional rights. The Court pays lip service to the Constitution's text, but a close reading of these opinions reveals that the text plays no meaningful role in deciding the outcome. It is therefore a mistake to call these opinions originalist, as many have.

Enter Randy Barnett and Lawrence Solum and their recent draft article, "Originalism After Dobbs, Bruen, and Kennedy: The Role of History and Tradition." Barnett and Solum advance what Michael Ramsey at The Originalist Blog describes as "an important antidote to the flood of academic commentary proclaiming that the Court's recent cases aren't originalist."

From the article's abstract:

In three recent cases, the constitutional concepts of history and tradition have played important roles in the reasoning of the Supreme Court. Dobbs v. Jackson Women’s Health Organization relied on history and tradition to overrule Roe v. Wade. New York State Rifle & Pistol Association v. Bruen articulated a history and tradition test for the validity of laws regulating the right to bear arms recognized by the Second Amendment. Kennedy v. Bremerton School District looked to history and tradition in formulating the implementing doctrines for the First Amendment Establishment and Free Exercise Clauses.

These cases raise important questions about the Court’s approach to constitutional interpretation and construction. Do Dobbs, Bruen, and Kennedy represent a new theory of constitutional interpretation and construction based on history and tradition? In the alternative, should the references to history and tradition in these opinions be understood through the lens of constitutional pluralism as modalities of constitutional argument? Finally, can the use of history and tradition in Dobbs, Bruen, and Kennedy be reconciled with the Supreme Court’s embrace of originalism?

Part One of this article elucidates the constitutional concepts of history and tradition. Part Two lays out four distinct roles that history and tradition can play: (1) as evidence of original meaning and purpose, (2) as modalities of constitutional argument within a constitutional pluralism framework, (3) as a novel constitutional theory, which we call “historical traditionalism,” and (4) as implementing doctrines. Part Three investigates the roles of history and tradition in Dobbs, Bruen, and Kennedy. In Part Four articulates a comprehensive strategy for the incorporation of history and tradition in constitutional jurisprudence.

Barnett and Solum describe the use of history and tradition tests as "business as usual" for the Supreme Court, and argue that Dobbs, Bruen, and Kennedy "contain scant evidence of the emergence of a new approach to constitutional interpretation that would supplant either Public Meaning Originalism or Constitutional Pluralism." (p. 26). This got my attention, as I've concluded the opposite.

Walking through Barnett and Solum's analysis of Dobbs, Bruen, and Kennedy reveals the lengths one must go to in order to conclude that these cases are consistent with an originalist approach to constitutional interpretation. Despite Barnett and Solum's conclusions about the healthy state of originalism after the October 2021 term, their analysis of each case acknowledges that each opinion strays from typical originalist analysis in varying degrees. While they attempt to account for these deviations and present each case in as originalist a light as possible, they fail to demonstrate that the Court's recent decisions reflect an originalist methodology. And this is important--these were some of the biggest cases of the term, and in recent memory. If originalism isn't how the Court decides these important cases, this casts doubt on originalism's explanatory and predictive value.

Candeub and Volokh on Section 230 and Removing "Otherwise Objectionable" Content From Websites

 At Volokh Conspiracy, Eugene Volokh flags a brief article that he coauthored with Adam Candeub that was recently published in the Journal of Free Speech Law. Here's the abstract:

[Communications Decency Act] Section 230(c)(2) immunizes platforms' decisions to block material that they "consider[] to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable." The ejusdem generis interpretive canon suggests that "otherwise objectionable" should be read "to embrace only objects similar in nature to those objects enumerated by the preceding specific words."

In this instance, the similarity is that all those words refer to material that was traditionally viewed as regulable in electronic communications media—and was indeed regulated by the Communications Decency Act of 1996, as part of which § 230 was enacted. And restrictions on speech on "the basis of its political or religious content" were not viewed as generally permissible, even in electronic communications.

Candeub and Volokh argue that "otherwise objectionable" material should not be interpreted as a catch all category, but should instead be construed in light of the other terms in Section 230(c)(2)'s list of materials. As a result, they urge that Section 230(c)(2) be read as immunizing Internet companies and websites from restricting "obscene, lewd, lascivious, filthy, excessively violent, or harassing communications," and that the statute not be read to immunize these actors from the removal of content that is objectionable based on its political content.

I think there are several problems with this argument. With the caveats that these are my initial impressions and that it's been a while since I've done intensive research into Section 230, these concerns are listed below. I've tried to list my objections in order of most technical and specific first, followed by broader points.

First, I think the ejusdem generis interpretive canon has less power in the particular context here because Section 230(c)(2) immunizes platforms' decisions to block "otherwise objectionable" content rather than "other objectionable" content. The latter wording would be a clear example of specific terms followed by a general term, and would be in line with most examples in Candeub's and Volokh's article which involve statutes listing examples, followed by "other" things. But the way the statute is actually worded includes the term, "otherwise," which suggests material that is objectionable in ways that are distinct from the preceding examples. Candeub and Volokh do not address this, and their esjudem generis argument therefore seems stronger than the language of the statute warrants, as it implicitly reads the statute as prohibiting "other objectionable" content rather than "otherwise objectionable" content.

Second, this reading takes an overly narrow view of the purpose of the provision it analyzes and the Stratton Oakmont, Inc. v. Prodigy Services Co. case that played a significant role in prompting the inclusion of the provision. In Stratton Oakmont, the plaintiff sued a website message board for defamation based on several allegedly defamatory posts from message board users. The plaintiff alleged that the message board was liable because it exercised editorial control over the message board, noting that the site set forth detailed content guidelines that discourage the posting of "insulting" notes, as well as notes that "harass other members or are deemed to be in bad taste or grossly repugnant to community standards, or are deemed harmful to maintaining a harmonious online community" stating that such content would be removed when brought to the site's attention. The court cited this choice to engage in this editorial control as opening up the site to greater liability than other sites that did not take such measures. 

Congress was aware of this case when it passed Section 230, which Candeub and Volokh recognize. But they only focus on remarks from legislators who cite the blocking of material that is not "family-friendly," which (sort of) lines up with their restrictive reading of the statute. But this narrow focus ignores the extent of editorial restrictions at play in Stratton Oakmont, which included guidelines for the removal of "insulting," [non]-harmonious," and "bad taste" comments. It also suggests a narrow view of "family friendly," content, which may well exclude truthful, politically significant content such as images and discussions of war or terrorism, litigation and legislation over sexual privacy and abortion, and other such political content. Stratton Oakmont illustrated the danger of any sort of editorial policy giving rise to heightened liability, and Section 230(c)(2) was the response. Candeub and Volokh's narrow reading is inconsistent with this broad concern that prompted the immunity provision.

Third, a reading of the statute that removes immunity concerning the removal of political content while immunizing the removal of other content would run into significant First Amendment problems. Those who run websites or forums may have their own political preferences, and may moderate content based on these preferences. Limiting this ability would infringe on those providers' First Amendment rights--an aspect of online content moderation that is often ignored by Section 230 critics (and misinterpreters) who prefer to focus only on the purported rights of users.

To Candeub's and Volokh's credit, they recognize that the First Amendment may be relevant, but set it aside for the purpose of their article. Because of this, though, the article's analysis is in a misleading vacuum.  What is the point of this discussion about ejusdem generis if the First Amendment will ultimately require a different reading? Indeed, the First Amendment may well be relevant to discussions of interpretive canons: to the extent that the narrow reading of "otherwise objectionable" content leads to First Amendment problems, the canon of constitutional avoidance would weigh in favor of an expansive interpretation that avoids this issue.

These are my initial concerns with the conclusions in the article, but I'll be interested in seeing what others have to say--particularly those who are more involved in Section 230 research and litigation than me.

Iowa's Law Targeting "Critical Race Theory"

A few weeks ago, Iowa's governor signed a law that she claimed would address the teaching of "critical race theory." Shortly after she signed the bill into law, the Des Moines Register reported:

Iowa Gov. Kim Reynolds signed a new law that she said will target the teaching of critical race theory and other concepts in government diversity trainings and classroom curriculum.

“Critical Race Theory is about labels and stereotypes, not education. It teaches kids that we should judge others based on race, gender or sexual identity, rather than the content of someone’s character,” Reynolds said in a statement. “I am proud to have worked with the legislature to promote learning, not discriminatory indoctrination.”

Critical race theory, a decades-old legal theory that examines how slavery's legacy continues to influence American society, is not specifically named in the new legislation. But the law would ban teaching certain concepts, such as that the U.S. or Iowa is systemically racist.

The new law, House File 802, goes into effect July 1.

Reynolds' signing comes as other Republicans across the country have said they want to eliminate teaching critical race theory and associated concepts from classrooms. Iowa is among more than a dozen states that have considered legislation this year aimed at eliminating similar concepts from classroom curriculum.

That same Register article notes that Iowa's law is based "nearly word for word" on an executive order issued by the Trump Administration (that is now repealed) that banned certain forms of diversity training for federal contractors. The Register's prior reporting on that order is here, the order itself is here.

There are a number of glaring practical problems with the law, which appear to be based, in part, on the bill's origin in a ban on training for contractors. For one, the law contains no penalty or disciplinary provisions, so it is unclear what would result from a violation of the law. The bill also includes prohibitions on certain types of training, but also includes restrictions for school curricula. While the restrictions on training are somewhat explicit, the restrictions on school districts and their curricula are woefully vague.

These defects, and others, are addressed in the remainder of this post, which walks through the law and tries to make sense of what is being restricted.

Illinois Supreme Court Rejects First Amendment Challenge to "Revenge Porn" Restriction

In Illinois v. Austin, the Illinois Supreme Court addressed a challenge to the State's prohibition on the non-consensual dissemination of private sexual images (also known as "revenge porn"). The law at issue, 720 ILCS 5/11-23.5(b), states:

A person commits non-consensual dissemination of private sexual images when he or she:
(1) intentionally disseminates an image of another person:
(A) who is at least 18 years of age; and
(B) who is identifiable from the image itself or information displayed in connection with the image; and
(C) who is engaged in a sexual act or whose intimate parts are exposed, in whole or in part; and
(2) obtains the image under circumstances in which a reasonable person would know or understand that the image was to remain private; and
(3) knows or should have known that the person in the image has not consented to the dissemination.

The Court's opinion has resulted in criticism from some commentators, and praise from others. While some of the criticism is correct, the Austin Court's recognition that the Illinois law targeted lesser-protected speech and therefore warranted an intermediate level of scrutiny appears to be a correct basis for its conclusion. Critics of the Austin opinion have failed to fully recognize this aspect of the decision by either mischaracterizing it or downplaying its basis in Supreme Court precedent. 

I. Summary of the Opinion

In Austin, the defendant and her fiancé shared an iCloud account, which meant that all text messages that the fiancé sent or received were visible on the defendant's iPad. ¶3. The fiancé and a neighbor exchanged several text messages, some of which included nude photographs of the neighbor. ¶4. The defendant and her fiancé then cancelled their wedding plans and broke up. The fiancé began telling people that the relationship ended because the defendant "was crazy and no longer cooked or did household chores." ¶5. The defendant, in turn, wrote a letter that included several nude photos of the neighbor and sent this letter to the fiancé's cousin. ¶6. The fiancé called the police, who interviewed the neighbor. The neighbor told them that while she was aware that the fiance and the defendant shared an iCloud account, she thought the account had been deactivated when she sent the nude photos and had intended that only the fiancé see the photos. ¶7.

The defendant was charged with one count of non consensual dissemination of private sexual images and moved to dismiss the charge, arguing that the statute was a content-based restriction on speech that violated the First Amendment. The lower court agreed with the defendant and held that the law was unconstitutional on its face. ¶10.

The Illinois Supreme Court disagreed with the lower court and held that the statute did not violate the First Amendment. The Court first stated that it rejected the State's request that it recognize that the dissemination of private sexual images as an unprotected category of speech.  ¶¶33-36. While some categories of speech, such as incitement, obscenity, defamation, and fighting words are recognized as falling outside of the category of protected speech, the Court stated that it would not add the dissemination of private sexual images to this list absent the Supreme Court addressing the issue.

While the Court refused to recognize the speech as entirely unprotected, it ended up reaching the significant conclusion that the dissemination of private sexual images was subject to a lesser amount of protection than other speech. The Court recognized that content-based restrictions on speech typically require court's to apply strict scrutiny to the restriction, which, in First Amendment cases, almost always results in the restriction being overturned. Here, however, the Court held that only an intermediate level of scrutiny was required, which meant that the law needed to serve "an important or substantial government interest unrelated to the suppression of free speech" and that the law "not burden substantially more speech than necessary to further that interest."  ¶59.

The Court advanced two justifications for its use of intermediate scrutiny. First, the Court claimed that the restriction was not a content-based restriction. While acknowledging that the law only applied to the dissemination of sexual images, the Court noted that the dissemination of this content was only unlawful if it was done so in a situation where the person sharing the content obtains the image under circumstances where a reasonable person knows or should know that the image is to remain private and that the person has not consented to the image's dissemination. The Court therefore concluded that the illegality of the dissemination was not premised on the content of the image, but rather on the manner of the dissemination. The law was therefore a time, place, or manner restriction, which warrants only intermediate scrutiny.  ¶49.

Separately, the Court noted that the law only restricted the dissemination of information that is of purely private concern.  The Austin Court noted that the Supreme Court in Snyder v. Phelps and Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. has recognized that restrictions on speech involving "purely private" matters does not threaten "free and robuse debate of public issues" and is less likely to "pose the risk of 'a reaction of self-censorship' on matters of public import." ¶54. The Court concluded that the defendant's sharing of sexual images did not involve an issue of public concern as they were privately-sent sexual images that did not "relate to any broad issue of interest to society at large." ¶56. The restriction on the dissemination of these issues therefore warranted intermediate, rather than strict, scrutiny.

The Court concluded that the restriction survived intermediate scrutiny, noting that it served a substantial government interest of protecting individual privacy rights and acknowledging that the dissemination of private sexual images causes "unique and significant harm to victims in several respects." ¶66. The Court then concluded that the restriction was tailored narrowly enough to survive a First Amendment challenge, as it defined what body parts or activities needed to be included in the prohibited images, required that the person in the image be identifiable from the image or information displayed with the image, required that the image be obtained under circumstances where a reasonable person would know or understand that it was to remain private, required that the person disseminating the image know that there was no consent to share the image, and also required that the person disseminating the images do so intentionally. ¶¶79-83. The law also included exemptions to the prohibition that included the dissemination of images for purposes of reporting a crime or for a "lawful public purpose."

II. The Court's First, Mistaken Rationale for Applying Intermediate Scrutiny

The Austin Court's first basis for concluding that the Illinois law was not subject to strict scrutiny was that it was a "time, place, or manner" restriction, rather than a content-based restriction on speech. The Court got to this conclusion by stating that the illegality of the dissemination of the sexual images is premised on the manner of how the images are shared. While sharing sexual images with the consent of the person pictured or in circumstances where the image was not expected to be private is permissible, doing so when there is no consent or where a reasonable person would recognize that the image was intended to remain private is prohibited. 

While this is correct, the fact remains that the illegality of sharing the sexual image is also premised on the content of the image. The law is a time, place, and manner restriction on speech, but it also only applies to certain content. Mark Bennett correctly notes that when restrictions have "both content-based and content-neutral elements," they are content-based restrictions that are subject to strict scrutiny. He cites R.A.V. v. City of St. Paul, where the Court addressed a law that prohibited "fighting words" that "insult[ed] or provok[ed] violence on the basis of race, color, creed, religion or gender." R.A.V., at p. 391. While fighting words are an unprotected category of speech, the Supreme Court held that it was unconstitutional to prohibited a content-based subset of that category. Id. at pp. 392, 396.

The approach used in R.A.V. undermines the Austin Court's reasoning. While some elements of the law involve the manner in which sexual images are shared, the law only applies to the sharing of sexual images or images of sexual content -- which is a content-based limitation. The law therefore is content-based, and the Court's attempt to sidestep this is a mistake.

III. The Second Rationale: Lesser Protection for Speech of Purely Private Matters

While the Austin Court's analysis on time, place, or manner restrictions is incorrect, it gave a second, stronger basis for its use of intermediate scrutiny by concluding that the speech at issue was "purely private" speech that was subject to a lower level of scrutiny.

In Dun & Bradstreet, the U.S. Supreme Court upheld a lower court's ruling affirming a jury's award of punitive damages after the defendant credit reporting agency shared a credit report for the plaintiff construction contractor that included false information. Dun & Bradstreet, at pp. 752-53. The Supreme Court noted that while it had previously recognized strong protections for speech on matters of public concern, speech of "purely private concern" warrants "less stringent" protection under the First Amendment. Id. at p. 760. The Court concluded that the credit report was speech of purely private concern, as it was made "solely in the individual interest of the speaker and its specific business audience." Id. at 762. The Court therefore held that permitting recovery of presumed and punitive damages was permitted, even absent a showing of actual malice.  Id. at 762.

The Austin Court uses Dun & Bradstreet and similar language from Snyder v. Phelps to support its conclusion that laws against disseminating private, sexual content are subject to intermediate scrutiny. Scott Greenfield criticizes this move by referring to "purely private speech" as a "non-category category" and accuses the Austin Court of relying solely on dicta from Snyder.  While this criticism is warranted to the extent that Snyder's invocation of lesser protection for purely private speech is dicta, it overlooks the basis for this doctrine in Dun & Bradstreet, which applied that lesser level of protection in upholding presumptive and punitive damages in a defamation case. Admittedly, the context of Dun & Bradstreet was different--as the Supreme Court was not evaluating the constitutionality of a criminal law restricting speech. But the rule set forth in Dun & Bradstreet was broad, and the Court applied that rule favorably in upholding an award of damages in a defamation case. It is neither surprising nor incorrect for a state court to apply this broadly-stated rule to a different set of circumstances, particularly one involving a law that requires the disseminated content to have been initially shared or kept in private circumstances. 

Bennett's criticism is less substantive, as he claims that the Austin Court identifies "speech on purely private matters" as a category of speech that is not subject to the same protection as other speech and that the Supreme Court has never recognized such a category. This misses the mark, as the Supreme Court in both Snyder and Dun & Bradstreet has recognized that speech on matters of purely private concern warrants a lesser level of First Amendment protection. It may not be a category of unprotected speech like defamation, fighting words, or obscenity, but as the Austin opinion demonstrates, the Supreme Court's First Amendment doctrine recognizes that purely private speech is subject to lesser protection, and this reasoning is certain to appear in future cases that involve similar laws against revenge porn. 

Bennett raised this same criticism back in 2014 when Danielle Citron set out proposed language for revenge porn restrictions. At that time, I argued that Bennett's critique of Citron's proposed law was misguided, as it ignored Supreme Court case law on lesser-protected speech of purely private concerns. Bennett dismissed that argument, claiming that the Supreme Court had not considered the "purely private concern" issues in recent cases involving First Amendment challenges to criminal statutes. In light of Austin, it seems that simply dismissing this aspect of First Amendment law is an unwise approach for those who wish to argue that revenge porn laws are unconstitutional. It is also unsurprising that Courts would look to this area of First Amendment law, as revenge porn prohibitions are often drafted to apply only to sexual images and content taken in a private setting and shared in a context where there is an expectation that the images will remain private. (For much more on how technology facilitates invasions of privacy and proposals to address these issues through legal and market efforts, see Citron's article, Sexual Privacy).

As the Cyber Civil Rights Initiative notes, the Illinois law is one of the strongest laws against non-consensual sharing of sexual imagery to survive a First Amendment challenge. Other states are likely to use the reasoning from this case in addressing challenges to their own laws. As other courts address these challenges, they will hopefully use the correct components of Austin's reasoning on lesser-protected speech rather than perpetuate the incorrect analysis on time, place, or manner restrictions.

UPDATE - 10/23/2019

In a measured response here, Bennett takes me to task for not reading extensive briefing that he filed in a separate case in Texas. His post on the Austin case was, after all, simply a "copy-and-paste" version of a brief he filed in the Texas case. My failure to review the briefing on that separate case--which was neither linked to nor referenced in his post on Austin--apparently "annoyed" him.

Bennett's brief from the Texas case, Ex Parte Jones, is included in his response. A link to the Court of Criminal Appeals page for that case where all the briefs can be downloaded is here. I have looked over the brief in Bennett's response and, to his credit, it addresses the private speech issue in far more detail than his original post. Heck, I might even write a separate post in response to those arguments one of these days now that it has been brought to my attention.

White on Trump "Opening Up" Libel Laws

I have written several posts on the implications of Trump's presidency on various constitutional rights. I was going to write one on the First Amendment, but after reading this article by Ken White of Popehat, there is not much more that I want to add. From the article:

As President, Trump will appoint federal judges, from the Supreme Court to the various Courts of Appeal to the trial judges on the many District Courts. But that's not a clear or easy path to "opening up" defamation law and changing either the actual malice standard or the requirement that defamation involve false statements of fact. The Supreme Court has supported the First Amendment very strongly in the last generation, particularly in comparison with other rights. The Court has repeatedly rejected recent attempts to create new exceptions to the First Amendment or to narrow it. Consider Snyder v. Phelps, in which the Supreme Court ruled 8-1 that Westboro Baptist Church protests at funerals were protected speech. That represented a firm refutation of the notion that speech could be limited because it is hurtful or offensive. Or consider the somewhat obscure but incredibly important United States v. Stevens, in which the Court — ruling 8-1 again — overturned a federal law against "crush videos" (don't ask) and sternly rebuked the government's position that courts can create new ad hoc exceptions to the First Amendment based on a weighing of the value of speech. Or consider Reed v. Town of Gilbert last year, in which the Court unanimously (though with some justices taking a different route) held the line on the idea that laws that restrict speech based on content are subject to strict scrutiny.

I recommend reading the whole article. The Wall Street Journal Law blog also highlights White's article and additional similar commentary here.

I think that Trump's support for "opening up" defamation law suggests, at best, ignorance of First Amendment law and, at worst, contempt for constitutional rights. But when it comes to defamation, the First Amendment will likely emerge unscathed from Trump's presidency, though I agree with White that his brash statements about libel may embolden more litigants to file defamation lawsuits.

Melania Trump Demands Removal of "Actionable" Statements from People Article

So reports Politico:

Donald Trump may not be planning to sue People over the magazine's story accusing him of sexual assault, but his wife Melania apparently is.

At 7:15 p.m. on Thursday night, Melania tweeted a copy of a letter bearing the return address of her lawyer, Charles Harder, and addressed to People editorial director Jess Cagle and People writer Natasha Stoynoff, who wrote a first-person account about Donald Trump forcibly kissing her at Mar-a-Lago in 2005.

Harder — who represented Hulk Hogan in his suit against Gawker, which was funded by Trump supporter Peter Thiel, and has sent threatening letters on Melania's behalf before — wrote that Stoynoff's account contained "actionable" falsehoods (though it did not call the article defamatory). The specific passage Melania Trump disputes: the account of the writer bumping into Melania and having a brief conversation with her outside of Trump Tower.

"The true facts are these: Mrs. Trump did not encounter Ms. Stoynoff on the street, or have any conversation with her. The two are not friends and were never friends or even friendly," Harder wrote.

A complete copy of the letter is here, and it is reprinted in full in the above Politico article.

The letter, which Politico notes uses the term "actionable," rather than "defamatory," does not specify what causes of action Melania Trump has against People. Melania's attorney contends that the statement gives rise to "claims of damages," but it is unclear how the mere statement that Melania recognized and said hello to Stoynoff is damaging in any way, even if it is false.

The letter states the vague threat that People's failure to retract the statements and issue an apology "will require Mrs. Trump to consider her legal options." Perhaps Melania and her attorneys should have considered the legal options before writing the letter, as Melania's legal options seem to be nonexistent.

Iowa's Law Against Simulated Intoxication

Back when I lived in Iowa City, the local police blotter was a reliable source of intrigue and occasional amusement. I would read it now and then, seeing if I could spot any elementary school acquaintances or unusual stories. As Iowa City is the home of the University of Iowa, a one time number one party school, accounts of public intoxication were rampant. While reading of these arrests, I sometimes wondered what would happen if I were to simply act intoxicated around police officers.

As it turns out, such activity could result in an arrest for public intoxication, and rightly so -- at least under the language of Iowa Code section 123.46, the statute prohibiting public intoxication. Section 123.46(2) states:

A person shall not use or consume alcoholic liquor, wine, or beer upon the public streets or highways. A person shall not use or consume alcoholic liquor in any public place except premises covered by a liquor control license. A person shall not possess or consume alcoholic liquors, wine, or beer on public school property or while attending a public or private school-related function. A person shall not be intoxicated or simulate intoxication in a public place. A person violating this subsection is guilty of a simple misdemeanor. (emphasis added)

I blogged about this section previously when the Iowa Supreme Court decided that you can be as drunk as the heck you want on your porch because it is not a "public place." In that previous post, I speculated that criminalizing simulated intoxication may violate the First Amendment, but I did not look into the question further.

For those who were disappointed with the short shrift I paid to this unusual law, you are in luck! At long last, here is my analysis on whether the law violates the First Amendment...

Sorry Iowa, Political Robocalls Are Protected by the First Amendment

While I currently live in California, I spent most of my life in Iowa, and I regularly visit my family in Iowa around the holidays. It is nice to go back, but if it happens to be a month before a caucus, I find that the phone rings off the hook with repeated robocalls from various candidates -- a phenomenon that I simply do not experience now that I live in such a politically irrelevant state. During my 2012 visit home I would try to guess which Republican candidate would greet me with their pre-recorded voice -- Michelle Bachmann and Newt Gingrich were the safest bets.

If somebody had proposed banning these robocalls, I would have welcomed the proposal without hesitation. But, according to the Federal District Court for the Eastern District of Arkansas, my enthusiasm would have been misplaced.

So reports the Wall Street Journal Law Blog:

Political robocalls may be an irritating feature of modern campaigning, but that doesn’t mean they don’t deserve protection under the First Amendment, a federal judge ruled. 

A decision handed down Wednesday in Arkansas federal court struck down a state law passed 35 years ago that banned political robocalls. The statute restricted commercial robocalling and also made it unlawful to solicit information “in connection with a political campaign” using an automated phone system for dialing numbers and playing recorded messages. 

. . .

The state attorney general’s office defended the robocall prohibition as a justifiable effort to respect people’s privacy interests and protect them from unwanted intrusions into their homes. They also argued that the law prevented “the seizure of phone lines, which could interfere with emergency calls being placed or received.” 

U.S. District Judge Leon Holmes was unpersuaded. He said the state’s motives would be more convincing had the law targeted robocalling more broadly.

The full text of the opinion is here.

Content-based restrictions on speech must pass the difficult "strict scrutiny" test -- meaning that advocates for the law must argue that the law is narrowly tailored to achieve a compelling government interest. The Arkansas law and the courts ruling on it present an interesting case in which the law was deemed underinclusive -- that is, the government interest in preventing privacy violations from automated calls is only partially served by a ban on one subset of automated calls. Often, in the context of freedom of speech, it is more likely that a statute will be deemed overinclusive in that the law prohibits too much speech to be narrowly tailored to achieve its goal.

It looks like Iowans and others will continue to suffer political robocalls. Additionally, if I were a law student, I would take note of this case, as its emphasis on underinclusiveness highlights an aspect of strict scrutiny that is often unaddressed, and that may be likely to make its way onto a future exam...

Denniston on Whether Citizens United Will be Overturned

Via How Appealing, I learned of this post by Lyle Denniston at the Constitution Daily blog for the Constitution Center. Denniston notes several statements in which Hillary Clinton, Bernie Sanders, and others forecast that the Supreme Court case of Citizens United v. Federal Election Commission will be overturned. In particular, Hillary Clinton stated the following on July 18, 2016:

“Today I’m announcing that in my first 30 days as president I will propose a Constitutional Amendment to overturn Citizens United and give the American people, all of us, the chance to reclaim our democracy. I will also appoint Supreme Court justices who understand that this decision was a disaster for our democracy…. I hope some of the brilliant minds in this room will seek out cases to challenge Citizens United in the courts, because I know I can’t do this alone.”

For a bit of background on Citizens United, Denniston writes:

In that ruling, the court voted 5-to-4 in declaring that the First Amendment protects the right of corporations and labor unions to spend unlimited amounts of their money to try to influence election outcomes. Many political analysts believe that this ruling brought about the rise of “super PACs,” with a dominant financial influence in national elections. (It is an irony of history that the Citizens United case arose because of the money spent to create a highly critical campaign movie against Hillary Clinton, who now is one of the strongest critics of the Citizens United decision.)

Denniston notes that a constitutional amendment is unlikely, given the difficult process of obtaining the widespread support necessary to pass an amendment. Denniston also argues that changing the makeup of the Supreme Court is an unlikely means to overrule the decision:

Hillary Clinton is now proposing two different ways to overturn that ruling. Often during speeches last year, she spoke about selecting Supreme Court Justices who, she hoped, could be counted on to overrule that decision. She has continued to press that approach. That has always seemed like quite a long shot. Even the death in February of one of the Justices in the majority, in that case, Antonin Scalia, may not have changed the judicial calculus – unless a newly elected Democrat chooses a replacement for Scalia who would help make a majority to overrule that decision. Candidate Clinton recently added a strong encouragement of lawyers to keep trying to file lawsuits to test whether the court might be persuaded on this point.

While I agree with Denniston's conclusion that a constitutional amendment is unlikely, I do not think that Clinton's proposal to change the makeup of the Supreme Court is a "long shot." Justice Scalia's death may result in a significant shift in the Court's ideological balance should Hillary Clinton win the 2016 election, and this shift may well lead to a reversal, or at least a narrowing, of the Citizens United decision.

Police Body Cameras: Not a Cure-All, But a Step in the Right Direction

The Wall Street Journal has this article from last week on police body cameras and the Alton Sterling shooting. The Journal notes that while footage of the shooting was captured on video, body cameras that the police officers were wearing did not pick up any footage. The officers reported that their "lapel cameras became dislodged while trying to subdue 37-year-old Alton Sterling."

From the article:

The shooting, which was filmed by several bystanders, came after one of the officers appeared to kneel on Mr. Sterling and hold a gun to him. The incident shows the limitations of body cameras, even as cities scramble to outfit officers with the devices amid public outcry over police shootings. 

The devices are meant to provide greater police transparency and accountability, but over the past several years, police across the country have encountered a litany of issues with body cameras—from officers refusing to activate them, to disputes over when footage should be publicly released, to technical malfunctions. 

. . .

Some district attorney offices around the country have reported being overwhelmed with camera footage of even the most mundane police encounters, which can take time and resources to sift through. 

In other instances, the American Civil Liberties Union has criticized police departments for failing to publicly release camera footage during investigations of officer shootings or other use of force incidents. 

“The problems with law enforcement go much deeper than can be solved by cameras,” said Jay Stanley, senior policy analyst for the ACLU. “They are a tool, which have the potential to help if the officer is well-trained and feels it is more likely to protect them then be used against them.” 

Still, several studies have shown that use of force incidents and citizen complaints have both gone down after officers begin wearing cameras.

The ACLU objects to body camera policies that fail to address public access to body camera footage. The ACLU also argues that body camera usage that may be used to increase police surveillance capabilities. For a thorough statement of some of the most common objections to body camera policies, you can see the ACLU's letter to the Bureau of Justice Assistance in which the ACLU argues against a federal grant to aid in the purchase of body cameras by the Los Angeles Police Department.

While I see where the ACLU is coming from, I ultimately find their arguments unconvincing. In this post I would like to walk through ACLU's arguments against the LAPD grant outlined in their letter and why I ultimately think that it is generally better for police officers to have body cameras.

Non-Disparagement Agreements With the Government and the First Amendment

Eugene Volokh wrote yesterday about a settlement agreement between a former employee of a Veterans Affairs Hospital in Washington. The settlement agreement, entered into by the parties in January 2013, contained a provision barring the former employee from:

. . . making any complaints or negative comments to any member of Congress or their staff, or any newspapers or media or their staff, or any other public forums, about the facts of this Settlement Agreement or the facts or conditions that led up to this Settlement Agreement.

Volokh notes that the Equal Employment Opportunity Commission recently found that the provision above violated the former employee's First Amendment rights.  I have written previously about non-disparagement agreements in the context of contracts between private parties. As I argued in that post, non-disparagement agreements hidden in contracts of adhesion between large companies and private consumers may be unconscionable and therefore unenforceable.

Non-disparagement agreements that are parts of settlement agreements between private parties are a different story. Typically, the parties are both represented by counsel and reach the settlement agreement after negotiation over the agreement's terms. If those terms contain a provision prohibiting one of the parties from disparaging the other, or speaking about the facts giving rise to the litigation, the term will likely be enforceable as a negotiated provision of an agreement. From prior research, I am aware of the Maryland Court of Special Appeals opinion in Smelkinson Sysco v. Harrell holding this to be the case, and Volokh cites Cohen v. Cowles Media in support of this claim.

But what of non-disparagement agreements between private parties and government entities? These agreements appear to raise First Amendment concerns because government action is involved. Volokh's post highlights one such example. Julia Craven points out similar provisions in settlement agreements reached in excessive force lawsuits against police officers. Does prohibiting the private party from speaking about the facts giving rise to the litigation violate that party's first amendment rights?

Volokh thinks it might:

Now whether such agreements, entered into by the government, are constitutional is a complicated question. Private parties often do enter into various confidentiality and nondisparagement agreements, and they’re generally enforceable. (See, e.g., Cohen v. Cowles Media Co. (1991).) The government is subject to First Amendment constraints, even when it’s acting as contractor; and I’m inclined to think that such a nondisparagement agreement, aimed solely at preventing embarrassment to the employer (rather than, say, preserving client privacy or national security secrets), is unconstitutional. Still, it’s not completely clear what the rules are here.

I disagree with Volokh's inclination (although I agree that the rules are unclear). If the parties have reached a negotiated settlement agreement in which a private party agrees to curtail his or her speech in exchange for a monetary payment or other action by the government, this strikes me as a negotiated waiver of First Amendment rights. Waivers of constitutional rights may be permitted if they are knowing and voluntary -- consider, for example, the vast majority of criminal cases resolved through plea bargains where defendants give up their right to a jury and right to confront witnesses (see also: DH Overmyer Co. v. Frick Co. for a more general discussion of waivers).

Knowing and voluntary waivers of First Amendment rights may also be constitutional. In Leonard v. Clark, the Ninth Circuit upheld the Portland Fire Fighters Association's agreement with the City of Portland providing in relevant part that legislation supported by the Union that resulted in increased payroll costs to the City would be charged against the applicable salary agreement with the Union. The Union contended that this violated its First Amendment right to petition the government, and the Ninth Circuit disagreed, holding that the Union had made a knowing, voluntary, and intelligent waiver of its First Amendment rights.

Another example is Estate of Barber v. Guilford County in which the Court of Appeals of North Carolina upheld a settlement agreement between a private party and the Guilford County Sheriff's Department in which the private party agreed not to use the term "murder" with respect to a certain Deputy. The Court of Appeals found that the waiver of First Amendment rights was knowing and voluntary, and therefore enforceable.

While I think that there is a decent argument that parties can be permitted to knowingly and voluntarily waive their First Amendment rights in a negotiated settlement with the government, the case law on this topic is underdeveloped. As discussion on these provisions in the public and private context continues, I look forward to seeing how the courts treat these agreements.

On the other hand, should awareness of non-disparagement agreements continue to grow, I would not be surprised if government entities began shying away from them. As Volokh points out, the presence of such agreements raises serious political accountability questions. If more people learn that government entities are requiring parties to sign non-disparagement agreements, speculation over what the government is trying to hide may end up being more damaging than the facts themselves.

Google to Remove Revenge Porn Images from Search Results

From the BBC:

Victims of revenge porn will be able to put in requests to Google to take down content from search results. 

The images will still exist but won't come up on a list when people look for them.
In a blog post the company's Vice President Amit Singhal said it will apply to "nude or sexually explicit images". 

Google has, in the past, resisted attempts for it to take down online content from those search results. 

The update is expected to come in over the next couple of weeks.

Google's announcement regarding these requests can be found here.

Revenge porn occurs when people post nude photos of somebody else online without the pictured person's consent. It is one of many ways the Internet can be used to harass and attack people. Danielle Citron goes into great deal about revenge porn and other forms of online harassment in her excellent book, Hate Crimes in Cyberspace. And just yesterday, John Oliver's "Last Week Tonight" had this segment on online harassment and revenge porn:



I have blogged several times about state laws that prohibit revenge porn and whether they are constitutional. For example, I think that properly tailored laws can prohibit revenge porn without violating the First Amendment. But while laws prohibiting revenge porn may help combat the problem of revenge porn, laws alone are not enough without the involvement of companies like Google.

While images of revenge porn may still exist online, Google's promise to exclude them from search results upon request is a significant step towards lessening the impact of these images on victims' lives.

It is Legal to be Intoxicated on the Front Steps of a Private Residence in Iowa

So ruled the Iowa Supreme Court last week, holding that Iowa Code section 123.46(2), which prohibits a person from being "intoxicated in a public place," does not prohibit people from being intoxicated on the front steps or porch of a private residence. The full text of the opinion is here. Coverage of the opinion is available here, here, and here.

The Court held that the front steps of a private residence are not a "public place." The Court noted that if a private residence's porch or residence were to be deemed a public place, people could be punished for a wide range of behavior. From the opinion:

[I]f the front stairs of a single-family residence are always a public place, it would be a crime to sit there calmly on a breezy summer day and sip a mojito, celebrate a professional achievement with a mixed drink of choice, or even baste meat on the grill with a bourbon-infused barbeque sauce—unless one first obtained a liquor license. We do not think the legislature intended Iowa law to be so heavy-handed.

Additionally, holding the front steps of a single-family home are always a public place would mean any intoxicated person who responsibly secures a ride home from a sober designated driver could be arrested for and convicted of public intoxication because they traversed the stairs of their single-family house while intoxicated. Iowans “should not suffer a criminal penalty for taking . . . responsible action.” (citations and footnote omitted)

It is important to note, however, that this ruling is limited to private residences. The Court noted at the outset of its opinion that in State v. Booth 670 N.W.2d 209, 215-16 the Court held that the front steps and hallway of apartment buildings are public places.

One other interesting thing that I learned from this opinion was that Iowa Code section 123.46(3) states:

A person shall not simulate intoxication in a public place. A person violating this subsection is guilty of a simple misdemeanor

I suppose I could see a few situations where this law might make sense. People are prohibited from attempting to fool officers into thinking they are intoxicated in violation of section 123.46(2). Although why anyone would ever want to do that is beyond me. Alternatively, this section may prevent sober friends from attempting to camouflage drunk companions by putting on a performance in which all the members of a group appear intoxicated and, in doing so, confound an officer's investigation (a tactic that I will call the Spartacus defense).

But ultimately, section 123.46(3) appears to be an overly strict prohibition, and I suspect that it may violate the First Amendment. If a storyteller or comedian is pretends to be intoxicated as part of an act or play, for instance, that person may be found guilty of simulating intoxication in a public place. Additionally, the law seems vague, since it is unclear how convincing the simulation of intoxication needs to be.

Perhaps the Supreme Court will address this intriguing subsection of the law on another occasion. Until then, those in Iowa who are sitting on their front porches or steps can raise a glass to the Iowa Supreme Court without fear of legal repercussion.

Supreme Court Narrowly Decides Online Threats Case, Elonis v. U.S.

At long last, the Supreme Court has issued an opinion in Elonis v. United States. I blogged about the opinion back when the Court granted certiorari in Elonis to answer this question presented:

Whether, consistent with the First Amendment and Virginia v. Black, conviction of threatening another person under 18 U.S.C. § 875(c) requires proof of the defendant's subjective intent to threaten, as required by the Ninth Circuit and the supreme courts of Massachusetts, Rhode Island, and Vermont; or whether it is enough to show that a “reasonable person” would regard the statement as threatening, as held by other federal courts of appeals and state courts of last resort.

Yesterday, the Supreme Court held that the "reasonable person" test is insufficient to support a conviction under 18 U.S.C. § 875(c). The Court did not address what level of intent is required to support a conviction, and the Court did not decide whether the reasonable person test was unconstitutional under the First Amendment.

The Court's opinion is available here. Coverage from Lyle Denniston at SCOTUSBlog is available here.

This high-profile case was eagerly awaited by many legal commentators, but ultimately resulted in a very narrow decision. Eugene Volokh notes the narrowness of the case here, and Orin Kerr argues that this narrowness was a good call.

While the Elonis case involved arguments touching on constitutional law, it is important to note that the Court explicitly avoided addressing First Amendment issues. Accordingly, while coverage noting that the Elonis decision is a victory for free speech may involve technically accurate descriptions of the ruling, readers should keep in mind that the Court did not wade into the question of whether 18 U.S.C. § 875(c) violates the First Amendment -- even if the statute is applied in a manner that asks whether a reasonable person would feel threatened by the statement.

Moreover, while the Court did indeed conclude that a defendant prosecuted under 18 U.S.C. § 875(c) must have a level of intent greater than negligence, it is important to note that this does not mean that a defendant must "intend to threaten" somebody in the conventional sense of the word. Summaries of the opinion claiming that defendants now must truly intend to make a threat, while accurate, may be misleading, since this language suggests that an individual must make a statement with the purpose to threaten somebody.

But the Court did not decide that a statement must be made with the purpose to threaten -- the Court simply held that it is not sufficient that the prosecution prove that a defendant negligently made a statement that would cause a reasonable person to regard the statement as threatening. A defendant may possibly violate 18 U.S.C. § 875(c) if he or she knowingly or recklessly makes a statement that another may feel threatened by. For instance the prosecution may succeed if it proves that a defendant made a statement that he or she knew would cause another to feel threatened, or that the statement would create a substantial risk that somebody else would feel threatened. The Court did not hold that the prosecution must prove that a statement is made with the purpose to threaten another. Readers in the legal community should have no trouble noting that "intent" does not necessarily mean "purpose." But I fear that the wider audience who reads broadly-worded commentary on the decision will be left with an impression that the Court's ruling is far wider than it actually was.

Ultimately, Elonis is a narrow decision, and I suspect that there is a great deal of litigation still to come that will attempt to answer the questions that Elonis leaves open. In the meantime, I hope that commentators and the general public will recognize Elonis for its narrowness rather than criticizing it or praising it for what it is not. Elonis is not a landmark victory for the First Amendment. Nor does it give people carte blanche to threaten others online. Elonis simply prohibits one way of interpreting 18 U.S.C. § 875(c) and leaves questions of free speech and required levels of intent for another day.

Ban on Sexual Orientation Conversion Therapy for Minors Approved By Iowa Senate

So reports the Des Moines Register:

Iowa mental health professionals would be banned from trying to change the sexual orientation of gay patients younger than 18 under a bill approved on a straight party line vote Tuesday by the Iowa Senate. 

Senate File 334 was passed 26-24. All Democrats voted in favor. All Republicans voted no. The bill now heads to the Republican-controlled House, where it will likely be declared dead amid strong opposition from Christian conservatives.

I had previously expressed hope that the bill would pass, noting that if more states pass similar bans, it could lead more courts to analyze the interesting First Amendment aspects of these laws. But if Republican lawmakers continue their voting patterns in the House, it looks like this bill isn't going to make it very much further.

Iowa Bill Would Prohibit Sexual Orientation Conversion Therapy for Minors

So reports the Des Moines Register:

A bill that would ban Iowa mental health professionals from trying to change the sexual orientation of gay patients under age 18 was approved by the Iowa Senate Human Resources Committee Wednesday on a straight party line vote. 

Senate File 31 was sent to the Iowa Senate floor with the committee's eight Democrats in favor and four Republicans against. While the measure could be approved this session by the Democrat-led Senate, it appears unlikely the GOP-controlled House will consider the bill. 

So-called conversion therapy attempts to convert gay, lesbian, bisexual and transgender individuals from homosexuality to heterosexuality through prayer and other efforts. It's based on the idea that a person's sexual orientation or gender identity is a choice.

The full text of the bill is available here.

I have blogged at length about a similar ban in California, the First Amendment challenge to the ban, and the Ninth Circuit's ultimate decision that prohibiting sexual orientation conversion therapy for minors is constitutional.

If the Iowa bill were to pass, I would not be surprised if it ended up facing similar constitutional challenges. California and New Jersey laws prohibiting sexual orientation conversion therapy for minors have survived constitutional attacks so far. But if more states continue to pass these laws,  some of the First Amendment challenges may end up succeeding. And if that happens, it could set the stage for a pretty fascinating Supreme Court case.

Is it Constitutional to Prosecute Those Who Mail Cow Manure?

My attempt at answering this age-old legal question is prompted by this story about a pair of feuding Iowa couples. Here is the report:

A southeast Iowa couple who were sent cow manure in the mail have sued the woman who acknowledges that she paid to have the poop sent.

The Hawk Eye reports that Mary Eipert and Steven Rowland want a judge to order Kimberly Capdevila and her husband, Carlos, to stop their dog from barking all day and night. The lawsuit filed Monday seeks compensatory and monetary damages for the barking and for what the lawsuit says is harassment by the Capdevilas.

The two couples are neighbors who have been squabbling over the barking dog. Fifty-one-year-old Kimberly Capdevila has said she had the manure sent as a practical joke. She has pleaded not guilty to a misdemeanor charge of harassment. She’s due back in court on April 7 for pretrial conference.

In this post I will briefly discuss the aspects of the Rowlands' civil claim, but then move on to discuss the criminal side of this story. I will look into the crime that Kimberly Capdevila has most likely been charged with, whether the prosecution has a strong case, and whether prosecuting Capdevila under this law is constitutional.

The First Conviction Under California's Revenge Porn Law

The Los Angeles City Attorney announced that it has secured a conviction against Noe Iniguez, who posted nude photographs of his ex-girlfriend online. The Huffington Post and Mashable have reports on the story as well.

California's law against revenge porn was enacted in October 2013 and is currently codified at Penal Code 647(j)(4)(A). Originally, the law prohibited certain instances of distributing photos that one had taken of another person. It therefore did not apply to photographs that a victim would take of himself or herself. An amendment that will expand the law to apply to selfies was approved by the governor in September, 2014, and it is my understanding that this change will take effect in 2015.

Here is the current version of the law:

Any person who photographs or records by any means the image of the intimate body part or parts of another identifiable person, under circumstances where the parties agree or understand that the image shall remain private, and the person subsequently distributes the image taken, with the intent to cause serious emotional distress and the depicted person suffers serious emotional distress.

The City Attorney's announcement describes Iniguez's conduct, which seems to be a pretty clear violation of the law:

In December 2013, Iniguez, using an alias, allegedly began posting derogatory comments about his ex-girlfriend on her employer’s Facebook page. In March, 2014 Iniguez allegedly posted a topless photograph of the victim on her employer’s Facebook page which was accompanied by a message that called the victim a “drunk” and a “slut” and encouraged her firing from the company. The victim had previously secured a restraining order against Iniguez in November 2011 after receiving several harassing text messages following the breakup of their four year relationship.

I have noted before that revenge porn laws tend to draw criticism from commentators who argue that these laws violate the First Amendment. Indeed, Mike Masnick at Techdirt raises this point against the California law (though he makes sure to note that Iniguez does indeed sound "horrible").

But I think that California's law does not raise the same First Amendment problems as, say, Arizona's recently-halted attempt to criminalize revenge porn. The California law specifies that the law is limited to images that are shared in private circumstances, and therefore requires prosecutors to establish that the circumstances in which the image was initially taken or shared were private. Moreover, the law requires the prosecution to prove that the defendant specifically intended to "cause serious emotional distress," and that the victim suffered such distress. All of these parts of the law narrow the scope of the revenge porn prohibition and thereby limit the law's impact on speech.

While this is the first conviction under California's revenge porn law, several other cases are about to get underway -- as the California Attorney General has filed charges against several websites that specialize in sharing revenge porn. I blogged about one of those cases back in December when the case was at the arrest stage.

Those who are interested in revenge porn laws should pay attention to California. The upcoming cases should illustrate whether laws against revenge porn can be a reliable tool for punishing deplorable online behavior. And if any of these cases are appealed, I expect that the California Courts of Appeal will need to address the First Amendment implications of laws against revenge porn.

Bennett's Flawed Criticism of Citron's Proposed Revenge Porn Restrictions

Over at Slate, Danielle Citron has this article excerpting her recent book, Hate Crimes in Cyberspace. In the article, Citron argues for laws that would criminalize revenge porn -- the nonconsensual sharing of another person's nude images online. Citron points out that these restrictions should only apply in particular circumstances:

Revenge porn laws should apply only if a defendant disclosed another person’s nude image knowing that person expected the image to be kept private and had not consented to the disclosure. By clarifying the mental state in this way, legislation would punish only knowing betrayals of someone’s privacy. Carelessly or foolishly posting someone’s nude image would not constitute criminal behavior. It would not be a crime, for instance, to repost a stranger’s nude photos having no idea that person intended them to be kept private.

Citron continues, providing language for a revenge porn restriction and confronting objections. One possible objection she notes is that there may be First Amendment challenges to the law. Citron argues that these challenges are unlikely to succeed:

My proposed revenge porn statute would withstand constitutional challenge. Disclosures of private communications involving nude images do not enjoy rigorous First Amendment protection. They involve the narrow set of circumstances when the publication of truthful information can be punished.

Over at his blog, Defending People, Mark Bennett responds to Citron's article, arguing that she is wrong to dismiss the First Amendment challenges. Here is Bennett's unpleasantly dismissive reply to Citron's argument that revenge porn restrictions will survive First Amendment scrutiny:

Laypeople don’t know that Citron is wrong and have no reason to doubt this bald assertions, and fellow academics are afraid of being called names for challenging zealots, so it falls to practicing lawyers to point out that this is the state of First Amendment law: 

               1.      Speech is presumptively protected.

               2.      Content-based restrictions on speech are presumptively void.

               3.      For a content-based restriction on speech to pass muster, the restricted speech must fall (at least mostly) within one of several narrowly defined categories of unprotected speech:

a.       Advocacy intended, and likely, to incite imminent lawless action;

b.      Obscenity;

c.       Defamation;

d.      Speech integral to criminal conduct;

e.       So-called “fighting words”;

f.       Child pornography;

g.      Fraud;

h.      True threats; and

i.        Speech presenting some grave and imminent threat the government has the power to prevent, “although,” says the Supreme Court, “a restriction under the last category is most difficult to sustain.”

Those are the categories of speech that the Supreme Court has recognized as unprotected. So Citron’s assertion that “disclosures of private communications involving nude images do not enjoy rigorous First Amendment protection” is incorrect. It might be her wish, but for it to be so the Supreme Court will have to make it so by recognizing another historically unprotected category. (Footnote omitted)

Bennett's statement of First Amendment doctrine is a concise outline of some of the law, but it is misleadingly incomplete. While Bennett has accurately described categories of speech that the Supreme Court has deemed "unprotected," there are other types of speech that are lesser-protected. The most established example of lesser-protected speech is commercial speech.

The Supreme Court has also recognized that "speech on matters of purely private concern" receives "less stringent" protection from the First Amendment (Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 759-60 (1985)). That sounds quite a bit like the speech Citron is talking about when she says that revenge porn bans should be limited to private communications between people in a trusting relationship. And footnote 190 of Citron and Mary Anne Franks's article, Criminalizing Revenge Porn, suggests that this is precisely the area of First Amendment doctrine Citron is referencing.

Bennett's criticism misses the mark because he assumes that Citron bears the burden of arguing that revenge porn is unprotected speech. Instead, Citron is arguing is that revenge porn is simply a lesser-protected form of speech. From what I have read in the article (and hope to read in the book), it looks like Citron makes a fairly strong argument that revenge porn fits into the category of speech on matters of purely private concern, and her proposed revenge porn restriction may indeed stand up to First Amendment scrutiny as a result.

Judicial Elections and Campaign Finance Regulations

Today's New York Times contains this article by Adam Liptak on campaign finance rules for judicial elections. From the article:

Soon after Justice O’Connor retired, in 2006, the Supreme Court embarked on a run of campaign finance decisions amplifying the role of money in politics. Those rulings are also helping transform state judiciaries. 

“At a time when concerns about the conduct of judicial elections have reached a fever pitch, the court today unleashes the floodgates of corporate and union general treasury spending in these races,” Justice John Paul Stevens wrote in his dissent in the 2010 Citizens United decision, which concerned spending in a presidential primary. 

The last three election cycles included $152 million in spending in judicial races, according to Justice at Stake, a research and advocacy group that says it seeks to protect judicial independence. “Judicial campaign cash is burning a hole in the Constitution,” said Bert Brandenburg, the group’s executive director. “You cannot pour millions of dollars into our courtrooms without having an effect.”

Liptak notes that the federal courts of appeals are split over whether states can prohibit campaign solicitations by judges. Liptak highlights one case, Williams-Yulee v. The Florida Bar, that may end up making it to the Supreme Court. The issue in that case is "Whether a rule of judicial conduct that prohibits candidates for judicial office from personally soliciting campaign funds violates the First Amendment."

Liptak points out that recent Supreme Court cases have taken a permissive approach to campaign finance regulations in cases like Citizens United v. FEC. He notes, however, that in Caperton v. A.T. Massey Coal Co., the Court seemed to take a different approach to cases involving judicial elections.

In Caperton, the United States Supreme Court overturned a West Virginia Supreme Court of Appeals decision on the ground that one of the West Virginia Supreme Court of Appeals justices, Brent Benjamin, had accepted substantial campaign donations from Don Blankenship, the chair of A.T. Massey Coal Co., and the defendant in the case. Despite having previously received these donations from one of the parties in a case before him, Justice Benjamin refused to recuse himself and ended up being the vote that caused the West Virginia Supreme Court of Appeals to rule in favor of A.T. Massey. The United States Supreme Court held that Justice Benjamin's refusal to recuse himself violated the plaintiff's due process rights.

Liptak's article concludes that the Court would likely strike down restrictions on judicial campaign funding despite its decision in Caperton. I am inclined to agree. While the Court's finding in Caperton recognized that some instances of campaign finance may affect a judge's impartiality and violate due process, Caperton involved a clear case where one judge had previously received a notably high amount of donations from one of the parties in a case before the judge. The Supreme Court would likely distinguish the clear abuse that occurred in the Caperton case from broader questions of campaign finance regulations which do not inherently involve such blatant quid pro quo.

Moreover, the Supreme Court can appeal to its ruling in Caperton to argue that campaign finance restrictions will not have a meaningful impact on preventing judicial corruption. Having ruled that clear instances of quid pro quo can already be remedied through due process challenges, the Court may argue that any additional regulation would be an excessive restriction on the First Amendment right to contribute to political campaigns.

If the Supreme Court does indeed intend to take this approach to judicial campaigns, it is likely that the Court will end up hearing the Williams-Yulee case in order to settle the circuit split on the issue. Moreover, the Ninth Circuit's recent decision to grant en banc review to its earlier decision striking down Arizona's restrictions on judicial campaign financing may increase the probability that the Court will take up Williams-Yulee.