Free Speech Arguments

Episode 18: Little v. Llano County

Little, et al. v. Llano County, et al., argued en banc before the U.S. Court of Appeals for the Fifth Circuit on September 24, 2024. Argued by Jonathan F. Mitchell (on behalf of Llano County, et al.), Henry Charles Whitaker (on behalf of Amici Curiae States supporting Llano County), and Matthew Borden (on behalf of Little, et al.).

Statement of Issues Presented for Review, from the Brief of Plaintiffs-Appellees:

1. Did the District Court clearly err in finding that Defendants removed 17 books from the public library because of their viewpoint and content, when the books did not meet the library’s own criteria for “weeding” books, Defendants’ internal communications referred to the books as “pornographic filth,” and Defendants offered demonstrably false testimony and pretextual explanations to justify their removal?

2. Did the District Court act within its discretion when it issued a preliminary injunction restoring the status quo by preventing Defendants from hiding the 17 books from library patrons until the merits of the case are decided?

3. Can Defendants moot the need for an injunction by having their lawyer buy the 17 books in question and place them in a non-public room in the library, where their presence is not listed in the library catalogue, is not advertised to patrons, and is not communicated by the library through the channels normally employed to tell library patrons that books are available?

From the dissent by Judge Stuart Kyle Duncan in the vacated panel opinion (citations omitted):

The commission hanging in my office says “Judge,” not “Librarian.” Imagine my surprise, then, to learn that my two esteemed colleagues have appointed themselves co-chairs of every public library board across the Fifth Circuit. In that new role, they have issued “rules” for when librarians can remove books from the shelves and when they cannot. While I do not doubt my colleagues’ good intentions, these “rules” are a disaster. They lack any basis in law or common sense. And applying them will be a nightmare.

Look no further than today’s decision. The two judges in the majority, while agreeing on the rules, cannot agree on how they apply to over half of the 17 books in this case. So, according to Judge Wiener, a library cannot remove It’s Perfectly Normal, a sex-education book for 10-year-olds that has cartoons of people having sex and masturbating. But according to Judge Southwick, removing that book is “likely permissible,” at least “[a]t this stage of the case,” because it contains “sexually explicit material that [i]s not appropriate for children.” Evidently, both judges would not allow a librarian to remove racist books—unless they have a “poor circulation history.” They differ, however, on how the rules apply to a series of children’s books about flatulence. And so we have a genuine first in the Federal Reporter: federal judges debating whether the First Amendment lets a library remove a book called (I kid you not) Larry the Farting Leprechaun.

This journey into jurisprudential inanity should never have been launched. There is a simple answer to the question posed by this case: A public library’s choice of some books for its collection, and its rejection of others, is government speech. I dissent.

 Resources:

The Institute for Free Speech promotes and defends the political speech rights to freely speak, assemble, publish, and petition the government guaranteed by the First Amendment. If you’re enjoying the Free Speech Arguments podcast, please subscribe and leave a review on your preferred podcast platform. To support the Institute’s mission, please visit our website: www.ifs.org

TikTok Inc. v. Merrick Garland, argued before Chief Judge Sri Srinivasan, Circuit Judge Neomi Rao, and Senior Circuit Judge Douglas H. Ginsburg in the U.S. Court of Appeals for the District of Columbia Circuit on September 16, 2024. Argued by Andrew J. Pincus (TikTok petitioners),  Jeffrey L. Fisher (TikTok creator petitioners), and Daniel Tenny (on behalf of Merrick Garland).

Background on the case, excerpted from the Brief of the TikTok Petitioners (citations omitted):

TikTok is an innovative online platform used by 170 million Americans. These Americans form part of a unique global community with more than 1 billion users worldwide, with whom they create, share, and view videos—“speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge.”

All that will end on January 19, 2025, when the Protecting Americans from Foreign Adversary Controlled Applications Act (the “Act”) will ban TikTok throughout the country.

The Act is unprecedented. Never before has Congress expressly singled out and shut down a specific speech forum. Never before has Congress silenced so much speech in a single act….

Congress provided no justification for banning TikTok by fiat, while creating substantive and procedural protections, as well as unexplained exclusions, for all other companies alleged to pose the same risks.

Without findings, the Court is left with statements of individual Members and a single committee report. Many of those Members criticized cherry-picked content on TikTok, merely reinforcing the Act’s unconstitutionality. The report invoked national security, pointing to the speculative possibility that TikTok could be misused in the future.

But a claim of national security does not override the Constitution….

The First Amendment requires this Court to examine such an extraordinary speech restriction with the utmost care and most exacting scrutiny….

Issues Presented, also from the Brief of Petitioners:

Resources:

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NetChoice, LLC v. Bonta, argued before Judges Milan D. Smith, Jr., Mark J. Bennett, and Anthony D. Johnstone in the U.S. Court of Appeals for the Ninth Circuit on July 17, 2024. Argued by Robert Corn-Revere (on behalf of NetChoice, LLC) and Kristin Liska, Deputy Attorney General (on behalf of Robert Bonta, Attorney General of the State of California).

A Description of the Law, from the Appellee’s Response Brief:

The California Age-Appropriate Design Code Act, AB 2273, is one of the most expansive efforts to censor online speech since the inception of the internet. Born from British regulations unfettered by the First Amendment, the Act requires online services to: (1) develop and make available to the State plans to “mitigate or eliminate” any risks their services “could” expose a minor to “potentially harmful” content before publishing any content, (2) publish only content “appropriate” for minors without first verifying with “reasonable certainty” the user is an adult, (3) not publish content based on user preferences unless it is in minors’ “best interests,” and (4) enforce content moderation policies to the State’s satisfaction.

Issues Presented, from the Appellant’s Opening Brief:

1. Whether the district court erred in applying heightened scrutiny to provisions of the California Age-Appropriate Design Code Act that regulate businesses’ collection and use of children’s data?

2. Whether the district court erred in determining that Plaintiff was likely to succeed on its claim that the Act violates the First Amendment?

3. Whether the district court erred in enjoining the Act in its entirety, in violation of California severability principles?

Resources:

The Institute for Free Speech promotes and defends the political speech rights to freely speak, assemble, publish, and petition the government guaranteed by the First Amendment. If you’re enjoying the Free Speech Arguments podcast, please subscribe and leave a review on your preferred podcast platform. To support the Institute’s mission or inquire about legal assistance, please visit our website: www.ifs.org

X Corp. v. Bonta, argued before Judges Milan D. Smith, Jr., Mark J. Bennett, and Anthony D. Johnstone in the U.S. Court of Appeals for the Ninth Circuit on July 17, 2024. Argued by Joel Kurtzburg (on behalf of X Corp.) and Gabrielle D. Boutin, Deputy Attorney General (on behalf of Robert Bonta, Attorney General of the State of California).

A Description of the Law, from the Appellant’s Opening Brief:

California enacted Assembly Bill 587 (“AB 587”)-a state law compelling social media companies to provide the State with semi-annual disclosures about their efforts to moderate certain categories of constitutionally protected speech that the State disfavors-as part of a concerted effort to limit or eliminate those categories of speech on social media platforms. The California Legislature was clear about both its intent and approach: it intentionally picked the most controversial and difficult-to-define categories of “awful but lawful” content-hate speech, racism, extremism, radicalization, disinformation, misinformation, harassment, and foreign political interference. And it imposed an approach requiring the companies to define the categories (or decline to do so) and provide statistics to the Attorney General (“AG”) about moderation of such content on their platforms as part of an effort to “pressure” the social media companies into restricting speech that the government finds objectionable or undesirable.

The law also provides nearly unfettered discretion to the AG to impose or threaten to impose substantial costs on social media companies-through costly document and other information requests and threatened or actual enforcement actions-if those companies fail to moderate these categories of content….

Issues Presented, from the Appellant’s Opening Brief:

I. Did the district court err by refusing to apply strict scrutiny, and instead applying Zauderer—a standard that applies only to compelled commercial disclosures consisting of purely factual, uncontroversial information about the terms under which services will be available—to AB 587, a law with the stated purpose of pressuring social media companies to change their content-moderation policies to limit or remove content that the State disfavors?

II. Did the district court err by holding that AB 587’s Terms of Service Report survives First Amendment scrutiny, regardless of which level of scrutiny applies?

III. Did the district court err by holding that AB 587-which is designed to and does allow the State to pressure X Corp. to change its content-moderation policies if they are not to the State’s liking-is not preempted by 47 U.S.C. §230(c)(2), which precludes the State from holding interactive computer service providers liable for good faith efforts to moderate objectionable content?

Resources:

The Institute for Free Speech promotes and defends the political speech rights to freely speak, assemble, publish, and petition the government guaranteed by the First Amendment. If you’re enjoying the Free Speech Arguments podcast, please subscribe and leave a review on your preferred podcast platform. To support the Institute’s mission or inquire about legal assistance, please visit our website: www.ifs.org

The Imperial Sovereign Court of the State of Montana v. Knudsen, argued before Judges Johnnie B. Rawlinson, Danielle J. Forrest, and Jennifer Sung in the U.S. Court of Appeals for the Ninth Circuit on June 4, 2024. Argued by Michael Russell (on behalf of Knudsen, et al.) and Constance Van Klay (on behalf of the Imperial Sovereign Court of the State of Montana, et al.).

Description of the Case, from the Introduction to the Appellees' Answering Brief:

It is clear what the Montana legislature meant to target through House Bill 359 (“HB 359”): drag. Legislators set their sights on drag because they believed—wrongly, and without evidence—that gender-nonconforming expression harms children. Obvious on the face of the law, their intent to stifle disfavored speech is proof enough that Plaintiffs likely will succeed on the merits of their First Amendment claim.

Far less clear—indeed, impossible to determine—is the law’s effect. Through HB 359, the legislature wildly overshot its mark, threatening draconian penalties against individuals, businesses, and organizations engaged in speech far beyond drag performances. As confusing as it is discriminatory, HB 359 is void for vagueness.

HB 359 can withstand constitutional review only by both creating a new exception to the First Amendment for drag and ignoring the void for vagueness doctrine. It discriminates on the basis of content and viewpoint, broadly chills protected speech, and opens the door to discriminatory enforcement.

Statement of the Issues, from the Appellant’s Opening Brief:

1. Whether the district court erred in finding that Plaintiffs have standing to seek injunctive relief against the State Defendants.

2. Whether the district court erred in finding Plaintiffs likely to succeed on the merits of their First/Fourteenth Amendment facial claim;

3. Whether the district court erred in finding Plaintiffs likely to succeed on the merits of their Fifth/Fourteenth Amendment facial claim;

4. Whether the district court erred in finding the remaining Winter factors weigh in favor of issuing a preliminary injunction; and

5. In the alternative, whether the district court erred in failing to properly narrow the scope of its preliminary injunction.

Resources:

The Institute for Free Speech promotes and defends the political speech rights to freely speak, assemble, publish, and petition the government guaranteed by the First Amendment. If you’re enjoying the Free Speech Arguments podcast, please subscribe and leave a review on your preferred podcast platform. To support the Institute’s mission or inquire about legal assistance, please visit our website: www.ifs.org

Nicholas Somberg v. Karen McDonald, argued before Senior Judge Alice M. Batchelder, Judge Amul R. Thapar, and Judge Andre B. Mathis in the U.S. Court of Appeals for the Sixth Circuit on June 12, 2024. Argued by Philip L. Ellison (on behalf of Nicholas Somberg) and Brooke E. Tucker (on behalf of Karen McDonald).

Statement of Question Presented, from the Appellant’s Brief:

Plaintiff Nicholas Somberg contends he (and others) have the First Amendment right to photograph, screenshot, audio/video record, broadcast, report, distribute, share, and make public photographic, audio, and audio-video recordings of public court proceedings being livestreamed worldwide when doing such does not interact or cause any interaction with pending proceedings.

The question presented is:

Whether the First Amendment protects the making of digital records (i.e. photographic and audio-video recordings) of public court proceedings from online streaming services being broadcasted worldwide when doing so does not in any way interfere with pending judicial proceedings?

Resources:

The Institute for Free Speech promotes and defends the political speech rights to freely speak, assemble, publish, and petition the government guaranteed by the First Amendment. If you’re enjoying the Free Speech Arguments podcast, please subscribe and leave a review on your preferred podcast platform. To support the Institute’s mission or inquire about legal assistance, please visit our website: www.ifs.org

LeRoy Pernell, et al. v. Brian Lamb, et al. (consolidated with Adriana Novoa, et al. v. Commissioner of the Florida State Board of Education, et al.), argued before Judges Charles R. Wilson, Britt C. Grant, and Barbara Lagoa in the U.S. Court of Appeals for the Eleventh Circuit on June 14, 2024. Argued by Charles Cooper (on behalf of Brian Lamb, et al.) and Leah Watson (on behalf of Appellees LeRoy Pernell, et al.) and Greg Greubel (on behalf of Appellees Adriana Novoa, et al.).

Issues Presented, from the Brief of Defendants-Appellants:

(1) Whether Plaintiffs have Article III standing to bring a pre-enforcement challenge to each provision of Florida’s Individual Freedom Act that regulates public universities;

(2) Whether the Act’s regulation of in-class instruction by public employees triggers First Amendment scrutiny;

(3) Whether the Act is sufficiently tailored to advance the State’s compelling interest in preventing invidious discrimination by public employees at public universities;

(4) Whether the challenged provisions of the Act are unconstitutionally vague;

(5) Whether any unconstitutional provisions are severable from the remainder of the Act; and

(6) Whether equitable factors favor reversal of the district court’s preliminary injunction.

Resources:

The Institute for Free Speech promotes and defends the political speech rights to freely speak, assemble, publish, and petition the government guaranteed by the First Amendment. If you’re enjoying the Free Speech Arguments podcast, please subscribe and leave a review on your preferred podcast platform. To support the Institute’s mission or inquire about legal assistance, please visit our website: www.ifs.org

National Republican Senatorial Committee, et al. v. Federal Election Commission, et al. argued before the U.S. Court of Appeals for the Sixth Circuit sitting en banc on June 12, 2024. Argued by Noel J. Francisco on behalf of the NRSC and Jason Hamilton on behalf of the FEC.

The Question of Constitutionality Certified by the ⁠District Court⁠:

Do the limits on coordinated party expenditures in § 315 of the Federal Election Campaign Act of 1971, as amended, 52 U.S.C. § 30116, violate the First Amendment, either on their face or as applied to party spending in connection with “party coordinated communications” as defined in 11 C.F.R. § 109.37?

Resources:

The Institute for Free Speech promotes and defends the political speech rights to freely speak, assemble, publish, and petition the government guaranteed by the First Amendment. If you’re enjoying the Free Speech Arguments podcast, please subscribe and leave a review on your preferred podcast platform. To support the Institute’s mission or inquire about legal assistance, please visit our website: www.ifs.org

U.S. v. Sittenfeld, argued before Judges John K. Bush, John B. Nalbandian, Eric E. Murphy in the U.S. Court of Appeals for the Sixth Circuit on May 9, 2024

Statement of the Issues, from the Appellant’s Opening Brief:

1. Whether objectively ambiguous evidence can prove an “explicit” quid pro quo, and whether the concededly ambiguous evidence here sufficed to do so.

2. Whether the Government constructively amended the indictment by relying on a “bribe” different from the one specified in the indictment’s “to wit” clause.

Introduction to the case, from the Appellant’s Opening Brief:

Politicians cannot sell their official powers—not for bags of cash, not for Rolexes or luxury travel, and not even for campaign contributions. But identifying a campaign contribution as a bribe is uniquely fraught, because such contributions are always based on expectations of what the candidate will do in office. Candidates, likewise, know their policies, promises, and pledges will affect their ability to raise funds. All that is not only lawful; it is constitutionally protected. The result is an incredibly fine line: Donating or soliciting based on policy commitments is First Amendment activity, while donating or soliciting in exchange for policy commitments threatens a prison sentence. Articulating that distinction is hard enough; distinguishing the two in practice is even harder. That, in turn, casts a pall of prosecution over our entire political system and deprives officials and citizens alike of fair notice about what conduct is criminal. 

 
Enter the Supreme Court. In McCormick v. United States, 500 U.S. 257 (1991), the Court addressed that problem by holding that the Government must hurdle a distinctly high evidentiary bar when it premises a bribery charge on a campaign donation …. [I]n the context of campaign contributions, the Government must show the quid pro quo was “explicit”— an unambiguous corrupt bargain. Anything less, the Court warned, would leave every campaign donation the fodder of a bribery charge, and every official at the mercy of a lay jury asked to infer corruption from money in politics…. 

 
Alexander “P.G.” Sittenfeld was a rising star on Cincinnati’s City Council, and favorite to become the next mayor…. The Government engineered a sting to see if he would accept a campaign donation in exchange for supporting a local development project…. Yet despite that choreography, Sittenfeld never bit…. 

 
The jury acquitted Sittenfeld on most counts, but (inconsistently) convicted on two. Even the district court acknowledged the Government’s evidence was at most “ambiguous,” and could be easily seen as ordinary politics. But the court reasoned that the jury was free to string together some vague phrases and pull an “explicit” exchange out of a hat. Every other court to address this issue, however, has required clear and unambiguous proof of corruption; none has upheld a conviction on a record so thin and ambivalent. Indeed, if this evidence suffices, McCormick has no meaning; prosecutors would be free to conjure a bribery charge against every politician, ushering in a First Amendment Ice Age. 

 
The Government’s failure to satisfy McCormick is the most fundamental legal error. But at minimum this Court should order a new trial, because the Government constructively amended the indictment…. Under this Court’s precedent, that shift compels a new trial. 

Resources:

The Institute for Free Speech promotes and defends the political speech rights to freely speak, assemble, publish, and petition the government guaranteed by the First Amendment. If you’re enjoying the Free Speech Arguments podcast, please subscribe and leave a review on your preferred podcast platform. To support the Institute’s mission or inquire about legal assistance, please visit our website: www.ifs.org

Diei v. Boyd, argued before Judges Joan L. Larsen, Chad A. Readler, and Stephanie Dawkins Davis in the U.S. Court of Appeals for the Sixth Circuit on May 2, 2024

Statement of the Issues, from the Appellant’s Opening Brief:

1. The First Amendment bars public university officials from punishing students for their protected speech under the guise of professionalism policies. Defendants investigated and voted to expel Plaintiff Kimberly Diei under the College of Pharmacy’s professionalism policy because of her pseudonymous posts about social and cultural issues on her personal social media accounts. Did the district court err by concluding that Defendants did not violate the First Amendment?

2. Viewpoint discrimination is a long-settled and egregious First Amendment violation. Defendants admit they punished Diei because they disapproved of the “sexual” and “vulgar” views she expressed on her personal social media. Did the district court err by granting Defendants qualified immunity for retaliating against Diei’s protected speech?

3. Claims for retrospective declaratory relief continue to present a live controversy so long as they are tied to a claim for damages. Diei’s claims for retrospective declaratory relief are tied to her damages claims because they arise out of Defendants’ same course of unconstitutional conduct. Did the district court err by concluding that Diei’s claims for declaratory relief are moot?

Resources:

The Institute for Free Speech promotes and defends the political speech rights to freely speak, assemble, publish, and petition the government guaranteed by the First Amendment. Learn more on our website: www.ifs.org