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: Whether the Program effects takings that require just compensation under the Fifth Amendment. Whether the Program compels speech in violation of the First Amendment. Whether a manufacturer’s submission to the Program’s demands is “voluntary” and immune from constitutional scrutiny. 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: Court Listener docket page Opening Brief for Appellant Brief for Appellees Institute for Free Speech amicus brief Institute for Free Speech case page (includes additional information) 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: Opening Brief for the Appellants Brief of Appellees Institute for Free Speech case page (includes additional case documents and information) 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: CourtListener case docket for Central Maine Power Company Institute for Free Speech amicus brief 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: CourtListener case docket for Little v. Llano County En Banc Supplemental Brief of Plaintiffs-Appellees Corrected Supplemental Brief of Defendants-Appellants “Discard [Library] Books … That Reflect Gender, Family, Ethnic, or Racial Bias” – analysis by Eugene Volokh (Reason / the Volokh Conspiracy) 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: Whether the Act violates the First Amendment. Whether the Act violates equal protection. Whether the Act is a Bill of Attainder. Whether the Act effects an unconstitutional taking. Resources: Public Redacted Brief for Respondent CourtListener case docket for TikTok Inc. v. Merrick Garland Background on United States v. O’Brien 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: Appellant’s Opening Brief Appellee’s Response Brief California’s Age-Appropriate Design Code Act (CAADCA) 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: Appellant’s Opening Brief Appellee’s Answering Brief Appellant’s Reply Brief A summary of (and link to) the Electronic Frontier Foundation’s amicus brief 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: Equality Files case docket for The Imperial Sovereign Court of the State of Montana v. Knudsen 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: CourtListener case docket for Somberg v. McDonald 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: CourtListener case docket for LeRoy Pernell v. Commissioner of the FL State Board of Education (pre-consolidation name of one of the constituent cases) 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: ⁠FEC case page docket for NRSC, et al. v. FEC, et al.⁠ ⁠Institute for Free Speech amicus brief⁠ 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: CourtListener case page for U.S. v. Sittenfeld Institute for Free Speech amicus brief in support of defendant-appellant. 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: CourtListener case page for Diei v. Boyd 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

Spectrum WT v. Wendler, argued before the U.S. Court of Appeals for the Fifth Circuit on April 29, 2024. The argument was heard by Judges James L. Dennis, Leslie H. Southwick and James C. Ho. Excerpted from the Brief for Plaintiffs-Appellants: Spectrum WT is a longstanding, recognized student organization at West Texas A&M . . . [I]n November 2022, Spectrum WT started planning a March 31, 2023, charity drag show at Legacy Hall [a campus venue]. The students planned their event to be anything but risqué. They instructed performers to avoid profane music or “lewd” conduct. And they described the planned performances as appropriate for those over 13 years old. Eleven days before the show, Defendant and Vice President for Student Affairs Christopher Thomas informed Spectrum WT that President Wendler was canceling the drag show. In a public edict posted online and emailed to the campus community, President Wendler declared that “West Texas A&M will not host a drag show on campus” because a “harmless drag show” could never be “possible.” Wendler’s 734-word edict focused on the “ideology” underlying drag shows. Drag, he wrote, is “a performance exaggerating aspects of womanhood (sexuality, femininity, gender)” that, through “slapstick,” “stereotype women in cartoon-like extremes for the amusement of others.” Statement of Issues (excerpted from the Brief for Plaintiffs-Appellants): Plaintiffs wish to perform a PG-13 charity drag show at West Texas A&M University, which the University’s president agreed is “performance” and “artistic expression.” Did the district court err in concluding that Plaintiffs’ drag show lacks First Amendment protection? Before anyone took the stage, West Texas A&M’s president banned drag shows in campus forums open to student expression because, in his view, drag shows promote values that clash with his own. Did the district court err in not enjoining this viewpoint-based prior restraint on protected expression? Resources: Brief for Plaintiffs-Appellants Spectrum WT, et al. Brief for Defendant-Appellee Walter Wendler (This is the only brief that discusses Christian Legal Society v. Martinez, but does so extensively.) Brief for Defendant-Appellees John Sharp and Christopher Thomas Appellants' Reply to Brief of Appellees John Sharp and Christopher Thomas Overview of Christian Legal Society v. Martinez (MTSU Free Speech Center) Opinion in Christian Legal Society v. Martinez Time Stamps: (0:00:00) Argument by J.T. Morris, counsel of record for plaintiffs (00:02:26) Questions; question by Judge Ho about comparing and reconciling CLS v. Martinez with the present case (00:19:10) Argument by Joseph N. Mazzara, Texas Attorney General's Office  (00:19:46) Questions (00:23:40) Mazzara begins to address CLS v. Martinez (00:32:10) Argument by Allison Marie Collins, Texas Attorney General's Office (00:33:01) Questions (00:37:20) Rebuttal by J.T. Morris (00:39:50) Morris revisits CLS v. Martinez; additional questions regarding CLS compared to the present case 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

Joseph W. Fischer  v. United States, argued before the Supreme Court of the United States on April 16, 2024 From the Petition for a Writ of Certiorari: Petitioner Joseph W. Fischer . . . attended the Stop the Steal rally on January 6. Unlike many of the other attendees, Mr. Fischer did not subsequently march with the crowd to the Capitol. . . . But after learning of the swelling demonstration, Mr. Fischer and his companion drove back to Washington, D.C. . . . Mr. Fischer was not part of the mob that forced the electoral certification to stop; he arrived at the Capitol grounds well after Congress recessed.***[T]he government also charged [Mr. Fischer with] a violation of Section 1512(c) (Count 3), which prohibits evidence-impairment in connection with, among other things, “a proceeding before the Congress.”***The D.C. Circuit's interpretation of the anti-shredding provisions of the Corporate Fraud and Accountability Act of 2002, 18 U.S.C. § 1512(c)(2), presents an important question of federal law affecting hundreds of prosecutions arising from January 6, including the prosecution of former President Donald Trump. . . . The D.C. Circuit's opinion conflicts with this Court's precedent, diverges from the construction of Section 1512(c) by other courts of appeal, and results—as Judge Katsas observed—in an “implausibly broad” provision that is unconstitutional in many applications. Question Presented: Did the D.C. Circuit err in construing 18 U.S.C. § 1512(c) (“Witness, Victim, or Informant Tampering"), which prohibits obstruction of congressional inquiries and investigations, to include acts unrelated to investigations and evidence? Resources: Fischer v. U.S. docket U.S. v. Fischer opinion (Court of Appeals for the D.C. Circuit) Time Stamps: (00:00:00) Argument by Jeffrey T. Green, counsel of record for Petitioner(00:34:44) Argument by Elizabeth B. Prelogar, Solicitor General of the United States (00:48:40) Justice Alito line of questioning about "mostly peaceful" protest hypotheticals and the outer reaches of this statute, which leads to a discussion touching on free speech issues. (01:36:35) Rebuttal by Jeffrey T. Green 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

United States v. Douglass Mackey, argued before the United States Court of Appeals for the Second Circuit on April 5, 2024. Panel: Debra Ann Livingston, Chief Judge, and Judges Reena Raggi and Beth Robinson. Most of this argument does not address the First Amendment issues present in this case, but those issues do get discussed and could impact the ruling. From the Opening Brief of Defendant-Appellant Douglass Mackey: For years, Congress has debated, as a matter of policy, whether to criminalize the spread of political or electoral misinformation. And scholars have debated, as a matter of constitutional law, whether such a prohibition would withstand scrutiny under the First Amendment. Those are hard questions. This case asks whether Congress already criminalized this conduct (and much more) 150 years ago…. The statute at issue, 18 U.S.C. § 241, forbids conspiracies “to injure, oppress, threaten, or intimidate” anyone in the “free exercise or enjoyment” of any federal right. Part of the Enforcement Act of 1870, that statute has always been understood in the voting context to prohibit coercion (like assaulting or threatening voters) and ballot-box fraud (like shredding or stuffing ballots). Until this case, it was never deployed against mere deceptive speech, even though misinformation has been endemic in our politics since the Founding. Reading § 241 to sweep in speech that deceives voters would, atop many other problems, render it grotesquely overbroad under the First Amendment—exactly how the Supreme Court recently cautioned not to construe criminal statutes…. Mackey was convicted of one count under [18 U.S.C.] § 241 for posting on Twitter, in the days preceding the 2016 presidential election, two "meme" images falsely suggesting that supporters of Hillary Clinton could vote by text message. Mackey testified that he posted the memes to garner media attention, and there is no evidence that anyone failed to cast a proper vote because of his tweets. But a deadlocked jury eventually convicted, and now—for the first time in U.S. history—a citizen has been sentenced to prison for spreading political misinformation. *** STATEMENT OF ISSUES Whether a private citizen commits a “clearly established” violation of 18 U.S.C. § 241 by spreading misinformation about how to vote. Whether criminal venue for a conspiracy offense can be premised solely on the travel of “internet data” across a district’s waters or airspace. Whether the evidence was sufficient to allow a jury to find the existence of a criminal conspiracy beyond a reasonable doubt. Resources: Second Circuit court calendar Opening Brief of Defendant-Appellant Douglass Mackey Brief for the United States Reply Brief of Defendant-Appellant Douglass Mackey 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

Leah Gilliam v. David Gerregano, Commissioner of the Tennessee Department of Revenue, et al., argued before the Supreme Court of Tennessee on April 3, 2024. From the Court of Appeals Opinion: Citizens of Tennessee may apply to the Tennessee Department of Revenue (the “Department”) for license plates featuring unique, personalized messages. Tennessee Code Annotated section 55-4-210(d)(2) provides that “[t]he commissioner shall refuse to issue any combination of letters, numbers or positions that may carry connotations offensive to good taste and decency or that are misleading.” After her personalized plate featuring the message “69PWNDU” was revoked by the Department, Leah Gilliam (“Plaintiff”) filed suit against David Gerregano (the “Commissioner”), commissioner of the Department, as well as the then-Attorney General and Reporter. Plaintiff alleged various constitutional violations including violations of her First Amendment right to Free Speech. Question Presented: Are personalized plates personal speech—as Ms. Gilliam maintains and as nearly every other court to consider that question has held—or are personalized plates the Government’s speech, as the Chancery Court Panel anomalously held below? Resources: Court of Appeals decision in Gilliam v. Gerregano Gilliam v. Gerregano page at the Tennessee courts website Reason article with background on the case Proposed Amicus Curiae Brief of Simon Tam Amicus Curiae Brief of The Foundation for Individual Rights and Expression in Support of Plaintiff-Appellee, Leah Gilliam Brief of Amicus Curiae First Amendment Lawyers Association Reply Brief for Appellants Brief for Appellants Brief of Appellee Leah Gilliam Time Stamps: (0:00:10) Argument by Matt Rice, Solicitor General of Tennessee (00:25:32) Argument by Daniel Alexander Horwitz, counsel for Leah Gilliam (00:55:45) Rebuttal by Matt Rice, Solicitor General of Tennessee 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

Sylvia Gonzalez v.Edward Trevino, II, et al., argued before the Supreme Court of the United States on March 20, 2024. From the Petition for a Writ of Certiorari: In Nieves v. Bartlett, this Court held that probable cause does not bar a retaliatory arrest claim against a “police officer” when a plaintiff shows “that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.”***Here, a 72-year-old councilwoman organized a petition criticizing a city manager, and unwittingly placed it in her binder during a council meeting. Two months later, respondents—the city manager’s allies—engineered her arrest for tampering with a government record. That charge has no precedent involving similar conduct, was supported by an affidavit based on the councilwoman’s viewpoints, and skirted ordinary procedures to ensure her jailing. The councilwoman sued respondents but no arresting officer. Questions Presented: Whether the Nieves probable cause exception can be satisfied by objective evidence other than specific examples of arrests that never happened. Whether the Nieves probable cause rule is limited to individual claims against arresting officers for split-second arrests. Resources: Gonzalez v. Trevino docket Institute for Free Speech Gonzalez v. Trevino amicus brief Nieves v. Bartlett opinion (2019) Time Stamps: (00:00:06) Anya A. Bidwell, Institute for Justice, Counsel of Record for Sylvia Gonzalez (00:30:00) Nicole F. Reaves, Assistant to the Solicitor General (00:57:00) Lisa S. Blatt, Counsel of Record for Edward Trevino, et al. (01:07:40) Justice Gorsuch asks about viewpoint discrimination in enforcement of statutes and the First Amendment (01:15:45) Justice Kagan asks a hypothetical about objective evidence of officers retaliating over viewpoint (01:23:40) Rebuttal by Anya A. Bidwell 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

Vivek H. Murthy, Surgeon General, et al. v. Missouri, et al., argued before the Supreme Court of the United States on March 18, 2024. From the Brief for the Petitioners: Respondents are two States and five individual users of social-media platforms who allege that the federal government transformed the private platforms’ content-moderation decisions into state action and violated the First Amendment by communicating with the platforms about content moderation and responding to the platforms’ inquiries about matters of public health. From the Brief for the Respondents: This Court “has rarely,” if ever, “faced … a coordinated campaign of this magnitude orchestrated by federal officials that jeopardized a fundamental aspect of American life.” The federal Petitioners (“Defendants”) “have engaged in a broad pressure campaign designed to coerce social-media companies into suppressing speakers, viewpoints, and content disfavored by the government.”***Having trampled the free-speech rights of “millions” of Americans, Defendants now complain that this Court cannot stop them because the government must be allowed to speak freely. This argument flips the First Amendment on its head…. Defendants would have this Court protect the government’s campaign to constrain private actors. The government can speak freely on any topic it chooses, but it cannot pressure and coerce private companies to censor ordinary Americans.” Questions Presented: (1) Whether respondents have Article III standing;(2) Whether the government’s challenged conduct transformed private social-media companies’ content-moderation decisions into state action and violated respondents’ First Amendment rights; and(3) Whether the terms and breadth of the preliminary injunction are proper. Resources: Murthy v. Missouri docket Institute for Free Speech Murthy v. Missouri amicus brief Op/ed by Charles “Chip” Miller and Brett Nolan in Bloomberg Law Time Stamps: (00:00:00) Brian Fletcher, Deputy Solicitor General of the United States (00:48:00) Solicitor General of Louisiana Benjamin Aguinaga, Counsel of Record for Missouri, et al. (01:38:00) Brian Fletcher rebuttal 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

National Rifle Association of America v. Maria T. Vullo, argued before the Supreme Court of the United States on March 18, 2024 From the Petition for a Writ of Certiorari: Bantam Books v. Sullivan held that a state commission with no formal regulatory power violated the First Amendment when it “deliberately set out to achieve the suppression of publications” through “informal sanctions,” including the “threat of invoking legal sanctions and other means of coercion, persuasion, and intimidation.” Respondent here, wielding enormous regulatory power as the head of New York’s Department of Financial Services (“DFS”), applied similar pressure tactics—including backchannel threats, ominous guidance letters, and selective enforcement of regulatory infractions—to induce banks and insurance companies to avoid doing business with Petitioner, a gun rights advocacy group. Respondent targeted Petitioner explicitly based on its Second Amendment advocacy, which DFS’s official regulatory guidance deemed a “reputational risk” to any financial institution serving the NRA. The Second Circuit held such conduct permissible as a matter of law, reasoning that “this age of enhanced corporate social responsibility” justifies regulatory concern about “general backlash” against a customer’s political speech. Question Presented: Does the First Amendment allow a government regulator to threaten regulated entities with adverse regulatory actions if they do business with a controversial speaker, as a consequence of (a) the government's own hostility to the speaker's viewpoint or (b) a perceived "general backlash" against the speaker's advocacy? Resources: NRA v. Vullo docket Institute for Free Speech blog by Barnaby Zall - “Does the First Amendment Allow a Government Official to Make Threats Like a Mob Boss?” Time Stamps: (00:00:00) ACLU Legal Director David Cole, on behalf of the NRA (00:36:00) Ephraim McDowell, Assistant to the Solicitor General (00:48:00) Neal Kumar Katyal, Counsel of Record for Maria Vullo (01:12:00) Rebuttal by David Cole 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