Free Speech Arguments

Episode 21: Bristol Myers Squibb Co v. Secretary United States Department of HHS

Bristol Myers Squibb Co. v. Secretary United States Department of HHS, consolidated under AstraZeneca Pharmaceuticals LP et al v. Secretary United States Department of HHS, argued before Circuit Judges Thomas M. Hardiman, Peter J. Phipps, and Arianna J. Freeman in the U.S. Court of Appeals for the Third Circuit on October 30, 2024. First Amendment question argued by Kevin F. King (on behalf of Bristol Myers Squibb Co., et al.) and Catherine M. Padhi (on behalf of the government).

Note: the court separated the various constitutional issues from the consolidated cases into distinct portions of the oral arguments.  What follows, both in terms of content and audio, relates specifically to the First Amendment question, which is the second of the three issues listed below. The other portions of the oral argument are not included in this podcast.

Statement of the Issues, from the Opening Brief for Appellant:

Background on the Drug Price Negotiation Program, from the Institute’s case page:

The program requires drug manufacturers to adopt these messages [that they “agreed” to a new “maximum fair price,”]—even when those companies disagree. Failure to do so would subject the companies to staggering excise tax penalties on every domestic sale, as well as forced withdrawal of all products from Medicare and Medicaid.

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

Episode 20: Moms for Liberty v. Wilson County Board of Education

Moms for Liberty – Wilson County, TN, et al. v. Wilson County Board of Education, et al., argued before Circuit Judges Jane Branstetter Stranch, Amul R. Thapar, and Eric E. Murphy in the U.S. Court of Appeals for the Sixth Circuit on October 29, 2024. Argued by Brett R. Nolan, Senior Attorney, Institute for Free Speech (on behalf of Moms for Liberty – Wilson County, TN, et al.) and Christopher C. Hayden (on behalf of the Wilson County Board of Education, et al.).

Statement of Issues, from the Opening Brief for the Appellants:

1. Whether Plaintiffs are likely to succeed on their claim that the Wilson County Board of Education’s policy requiring that speakers announce their address during the Board’s public-comment period violates the First Amendment.

2. Whether Plaintiffs are likely to succeed on their claim that the Wilson County Board of Education’s policy prohibiting “abusive” speech during its public-comment period violates the First Amendment.

3. Whether Plaintiffs are likely to succeed on their claim that the Wilson County Board of Education’s requirement that individuals who want to speak on non-agenda items during the public-comment period prove their comments are “in the public interest” violates the First Amendment.

4. Whether the Wilson County Board of Education’s partial voluntary cessation moots Plaintiffs’ challenges to the Board’s policies.

5. Whether the Wilson County Board of Education’s partial voluntary cessation prevents a finding of irreparable harm.

6. Whether Plaintiffs are entitled to a preliminary injunction against the address rule, the abusive-speech rule, and the public-interest rule.

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

Episode 19: Central Maine Power Company, et al. v. Maine Commission on Governmental Ethics and Election Practices, et al.

Central Maine Power Company, et al. v. Maine Commission on Governmental Ethics and Election Practices, et al., argued before Circuit Judge Lara Montecalvo, Senior Circuit Judge Jeffrey R. Howard, and Circuit Judge Seth Aframe in the U.S. Court of Appeals for the First Circuit on October 9, 2024. Argued by Jonathan Richard Bolton, Maine Assistant Attorney General (on behalf of the Maine Commission on Governmental Ethics and Election Practices, et al.),  Joshua D. Dunlap (on behalf of Central Maine Power Company, et al.), Paul McDonald (on behalf of Versant Power and ENMAX Corporation), and Timothy Woodcock (on behalf of individual voter plaintiffs).

Statement of Issues Presented for Review, from the Brief of Plaintiff—Appellee Enmax Corporation and Versant Power:

1. Whether the district court abused its discretion by preliminarily enjoining enforcement of 21-A M.R.S. § 1064 (the “Act”), which bars all campaign spending of a domestic corporation if 5% or more of its stock is owned by certain foreign entities or such a foreign entity directly or indirectly participates in its campaign-spending decisions, on the grounds that the Act facially violates the corporation’s First Amendment rights.

2. Whether the district court abused its discretion in determining that the Act is expressly preempted by federal law as applied to federal elections when the Act’s plain text does not limit its application to state elections.

3. Whether the district court’s decision enjoining the Act should be affirmed on two alternative grounds left unaddressed by the district court: (i) the Act violates the United States Constitution’s “dormant foreign commerce clause,” Article I, Section 8, Clause 3; and (ii) the Act, as applied to Versant Power, violates its rights under the First Amendment.

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

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:

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

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