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To raise such questions is to point to the problem, the key one: So much of legal scholarship is infatuated with appellate decisional law and the judges who write it (or are so credited). In other words, if lawyers such as Hayden Covington are virtually ignored in our scholarship and casebooks, it is first and foremost because of the judge-made-law view that is so much the norm in modern American legal thinking.

In (13 FIU L. Rev. 599 (2019), I set out to do two things:

1. Sketch out the life story of the lawyer for the Jehovah’s Witnesses, the man who argued more First Amendment cases in the Supreme Court than all others, and;
2. Provide an overview of some of the important work done by lawyers who argued landmark free speech cases in the Supreme Court (e.g. ,  , , , , , , , , Eleanor Holmes Norton, , , and , among others)

From :

Consider the following mainstays of modern First Amendment and constitutional law:

• The incorporation doctrine [religion clauses]
• The state action doctrine as applied to the First Amendment
• The preferred position doctrine
• The least restrictive means doctrine

What do those four cases in which those doctrines were formulated have in common? Was it that the same jurist wrote all of the opinions in them? Was that it? To ask the question is to answer it. The common denominator in these cases, among others, is that the same man (Hayden Covington) argued all of them and all of them involved the same rights claimants (Jehovah’s Witnesses). "In the mid-twentieth century, Covington handled as many as 50 major cases every year involving the civil liberties of Jehovah’s Witnessess, who frequently faced persecution because of their uncommon beliefs and often provocative behavior."

The Assange Indictment & the First Amendment

This from a piece by Jackie McDermott over on the National Constitution Center's Constitution Daily:

WikiLeaks founder arrest for hacking conspiracy charges last Wednesday has sparked renewed debate over where courts should draw the line between journalism protected by the First Amendment and actions that are considered cybercrime under federal law.
 

Police arrested Assange in London on April 11, 2019, and that day the Justice Department for "conspiracy to commit computer intrusion." Assange is accused of helping Chelsea Manning, a former U.S. Army intelligence analyst and convicted leaker, hack into a goverment computer to obtain classified documents in a manner that would conceal her identity. Assange will likely be extradited to face trial in the United States, and he would face a maximum sentence of five years in prison.

Assange’s arrest raised alarm bells among some First Amendment advocates, including Director of the ACLU’s Speech, Privacy, and Technology Project, and the primary legal adviser to Edward Snowden. Wizner joined , the Executive Director of Georgetown’s Institute for Constitutional Advocacy and Protection, to discuss the Assange indictment on of our We the People podcast.

Wizner expressed concern about the way that the indictment described Assange’s interactions with Manning. As Manning sent information and documents to Assange, Assange sought to maintain a secure means of communications with her and help her conceal her identity—actions that journalists often take when cultivating relationships with government sources.

'These are things that investigative journalists do all the time,” Wizner said. While making clear that journalists do not help sources hack into computers, he added that “all of the acts in furtherance, all of the other conduct that’s described [in the indictment], does look a lot like [journalism], and the journalists I’ve spoken to in the last week are at least uneasy about that."

Related

• Ben Wizner & Jameel Jaffer, , ACLU (April 15, 2019)

Fifth Circuit Rules for Plaintiff in Challenge to Sheriff Office Facebook Page
 

This from Steven D. Schwinn over at :

The Fifth Circuit that a sheriff office's official Facebook page was a public forum; that the office's posting rules were based on the viewpoint of the poster, in violation of the First Amendment; and that the rules constituted official county policy. The ruling reverses a lower court's denial of a preliminary injunction and remands the case for further proceedings. (That is, the case is still at a preliminary stage, though the ruling answers many of the legal questions.)

The case, , tested the Hunt County Sheriff's Office Facebook page. According to the page, "We welcome your input and POSITIVE comments regarding the Hunt County Sheriff's Office." Moreover, "We encourage you to submit comments, but please note that this is NOT a public forum." On January 18, 2017, the HCSO Facebook account posted this message:

We find it suspicious that the day after a North Texas Police Office is murdered we have received several anti-police calls in the office as well as people trying to degrade or insult police officers on this page. ANY post filled with foul language, hate speech of all types and comments that are considered inappropriate will be removed and the user banned. There are a lot of families on this page and it is for everyone[,] and therefore we monitor it extremely closely. Thank you for your understanding.

Robinson and others posted on the page criticizing the policy as a violation of the First Amendment. Robinson's post was removed, and she was banned from the page. She sued individual officers and the county and moved for a preliminary injunction. The district court denied the injunction and later dismissed the case for failure to state a claim.

The Fifth Circuit reversed as to the county. (Robinson didn't appeal as to the individual officers.)

13 First Amendment Scholars File Amicus Brief in Political Boycott Case

The case is (8th Cir.). The Arkansas Times challenges the constitutionality of Act 710, a state statute requiring that companies doing business with state entities certify that they are not boycotting Israel. The amicus brief filed by 13 First Amendment scholars is excerpted below:

This appeal turns on a narrow, but significant, dispute about the scope of the Supreme Court’s decision in NAACP v. Claiborne Hardware Co. (1982). In that landmark case, the Supreme Court recognized that political boycotts by consumers are inherently expressive. On that basis, the Court held that the First Amendment protected the NAACP and its members from liability for organizing and participating in a political boycott of white merchants in Claiborne County, Mississippi.
 

The State of Arkansas has enacted a law that burdens peaceful political boycotts of Israel, by requiring state contractors to certify that they will not boycott Israel or companies who do business in Israel for the duration of their contracts. See Ark. Code Ann. ; id. . The law allows contractors to forgo this requirement if they are willing to accept a contract price at least twenty percent less than the lowest certifying business. Id. § 25-1-503(b)(1). The primary question on appeal is whether Arkansas’s anti-boycott law is subject to First Amendment scrutiny under Claiborne. Amici write respectfully to explain that the district court erred in holding that the First Amendment has no application to this case. Claiborne clearly held that political boycotts by consumers are covered by the First Amendment.

The 13 professors are:

• William D. Araiza, Professor of Law Brooklyn Law School
• Jack Balkin, Knight Professor of Constitutional Law and the First Amendment Yale Law School
• Erwin Chemerinsky, Dean and Jesse H. Choper Distinguished Professor of Law University of California, Berkeley, School of Law
• Owen Fiss, Sterling Professor Emeritus of Law Yale Law School
• Katherine Franke, Sulzbacher Professor of Law, Gender, and Sexuality Studies Columbia Law School
• Seth F. Kreimer, Kenneth W. Gemmill Professor of Law University of Pennsylvania Law School
• Genevieve Lakier, Assistant Professor of Law University of Chicago Law School
• Burt Neuborne, Norman Dorsen Professor in Civil Liberties New York University School of Law
• Amanda Shanor, Assistant Professor The Wharton School University of Pennsylvania
• Geoffrey R. Stone, Edward H. Levi Distinguished Service Professor of Law The University of Chicago
• Nadine Strossen, John Marshall Harlan II Professor of Law New York Law School
• Nelson Tebbe, Professor of Law Cornell Law School
• Rebecca Tushnet, Frank Stanton Professor of the First Amendment Harvard Law School

Lawsuit Challenges South Dakota Ban on Out-of-State Contributors to Ballot Measures

From the :

A coalition of South Dakota media associations, trade associations, a nonprofit advocacy group, and a former South Dakota resident recently  a lawsuit in federal court challenging a South Dakota law that will ban Americans from other states from contributing to ballot measure campaigns. The groups are represented by the Institute for Free Speech and former South Dakota Attorney General Marty J. Jackley.

“The ban is an affront to the First Amendment,” said Institute for Free Speech Legal Director Allen Dickerson. “States cannot prevent speech simply because it is funded in part by Americans who live in other states. This law denies South Dakotans the right to hear messages from their fellow Americans.”
 

Plaintiffs in the case are the , the South Dakota Retailers Association, the South Dakota Broadcasters Association, the South Dakota Chamber Ballot Action Committee, Thomas Barnett, Jr., and Americans for Prosperity.

The lawsuit says contributions in support or opposition to ballot measures are an important form of free speech protected by the First Amendment. Courts have long recognized that contributions to ballot measure campaigns promote robust debate about public issues. This is no less true for contributions from Americans from other states, the lawsuit explains.

. . .

Banning out-of-state contributions prevents groups like the Sierra Club from supporting ballot measures to enhance environmental protections, and stops groups like the NRA from contributing to ballot measure campaigns that affect gun rights. The result is less speech and less information for voters.

The complaint cites the Supreme Court’s Buckley v. Valeo decision, which noted that government cannot restrict the speech of some segments of society in order to bolster others. The First Amendment requires that voters decide for themselves which views to give weight. State governments have no legitimate reason to prohibit Americans from other states from contributing to ballot measure campaigns, the lawsuit says.

Michigan ACLU Sues City Over No Soliciting Sign Ordinance

This from a by Mark Cavitt for the Iosco County News-Herald:

The Michigan ACLU is challenging the constitutionality of a City of Wixom ordinance the regulates solicitors, peddlers, and canvassers.

According to the lawsuit, filed in the U.S. Eastern District Court in Detroit on Monday, the ACLU states that two provisions included in the are unconstitutional and restrict an individual's First Amendment right to free speech.

The provisions define the words "canvasser" and "canvassing" and ban door-to-door canvassing in public neighborhoods that choose to place signs at each entrance prohibiting such activity. The City of Wixom does not require canvassers to carry a permit.

. . .

ACLU Attorney Bonsitu Kitaba called the ordinance "problematic" in that it restricts political expression.

She added that while an individual resident may choose to post a "No canvassing" or "No solicitation" sign on their own property, the city or neighborhood association cannot implement a "blanket ban" on these types of First Amendment activities.

Scalia La��’s Free Speech Clinic Assists in Challenge to Limits on Vanity License Plates