In the News
SCOTUSblog: Petition of the day
By Aurora Barnes
The petition of the day is:
Patriotic Veterans, Inc. v. Hill
16-1198
Issues: (1) Whether Indiana’s Automatic Dialing Machine Statute creates a content-based restriction that cannot survive strict scrutiny under Reed v. Town of Gilbert, Arizona; and (2) whether the ADMS is a valid time, place and manner restriction.
CCP
Mississippi Supreme Court Dismisses Attempt to Discipline Judge over Protected Speech
The Mississippi Supreme Court last week dismissed with prejudice an attempt to discipline a judge over constitutionally protected speech. The Center for Competitive Politics (CCP), represented by the UCLA Scott & Cyan Banister First Amendment Clinic, filed a brief in the case supporting robust First Amendment rights for judicial candidates.
“Elected judges have to have broad rights to speak to their constituents in their own voice, whether on Twitter, in a book, or otherwise. I was delighted to see that the Mississippi Supreme Court agreed that Judge Polk-Payton’s speech did not violate any rules,” said UCLA Law Professor Eugene Volokh, author of the brief and supervisor of the Clinic.
“If judges are to be elected, voters have a right to understand judicial candidates’ views and personalities. The Mississippi Supreme Court correctly chose not to allow a subjective view of ‘appropriateness’ to override that principle,” said CCP Legal Director Allen Dickerson.
The Mississippi Commission on Judicial Performance had argued that Forrest County Justice Court Judge Gay Polk-Payton had engaged in expression “undignified and demeaning” to the judicial office.
The Courts
U.S. News & World Report: Court: ‘JudgeCutie’ Nickname Doesn’t Ruffle Judicial Dignity
By Emily Wagster Pettus, Associated Press
A Mississippi jurist can call herself “JudgeCutie” without ruffling the dignity of the legal profession.
That’s what the Mississippi Supreme Court says, in one of its speediest decisions in years.
Only two days after hearing arguments, the court – which often takes months for decisions – dismissed a complaint filed against Gay Polk-Payton. The Forrest County justice court judge has gone by “JudgeCutie” on social media.
The state Commission on Judicial Performance sought to reprimand her, saying she had used her job on the bench and the online persona to promote herself as a motivational speaker and musical entertainer. The commission complaint said Polk-Payton had expressed opinions online about her job as a judge, and it criticized her for wearing her judge’s robe on the cover of her book that was a compilation of her social media posts…
Justices said they found “no violation of the Mississippi Code of Judicial Conduct” by Polk-Payton. Mississippi justice court judges are elected and generally work part time.
Hattiesburg American: Supreme Court rules no wrongdoing by Judge Polk-Payton
By Lici Beveridge
The Mississippi Commission on Judicial Performance accused Justice Court Judge Gay Polk-Payton of using her position as a judge to promote sales of her book and to further her music career…
The complaint also said the use of Polk-Payton’s judicial status on her social media accounts, including her former handle, “JudgeCutie,” violated the state’s code of conduct for judges.
However the commission admitted there is no set rules for conduct on social media, so could not fully explain what the complaint was about…
Justice Jess Dickinson, himself an author and musician, said there needed to be something more to the claim than just her wearing a judge’s robe.
“We both have difficult jobs,” Dickinson told Michel during a live stream of court proceedings. “But I’m looking at the allegation that gives me concern in this case, and I’m looking at the canon that it is based upon and that canon requires us to find by clear and convincing evidence that Judge Polk-Payton lent the prestige of her office to advance her private interests.
“I don’t believe anybody does that simply by saying, ‘I’m a judge.’ “
Supreme Court
Cato: Supreme Court to Slants: Rock On!
By Ilya Shapiro
In a unanimous judgment that splintered on its reasoning, the Supreme Court correctly held that the “disparagement clause” of the Lanham Act (the federal trademark law) violated the Constitution. The ruling boils down to the simple point that bureaucrats shouldn’t be deciding what’s “disparaging.”
Trademarks, even ones that may offend many people-of which plenty are registered by the Patent and Trademark Office (PTO)-are private speech, which the First Amendment prevents the government from censoring…
Justice Alito, joined by Chief Justice Roberts and Justices Thomas and Breyer, explained why trademarks don’t constitute a subsidy or other type of government program (within which the government can regulate speech), and that the “disparagement clause” doesn’t even survive the more deferential scrutiny that courts give “commercial” speech. The remaining four justices, led by Justice Anthony Kennedy, would’ve ended the discussion after finding that the PTO here is engaging in viewpoint discrimination among private speech…
Whether you’re a musician, a politician, or a sports team-the Washington Redskins’ moniker will now be safe-it’s civil society (consumers, voters, fans) who should decide whether you’re being too offensive for polite company.
USA Today: A resounding victory for free speech
By Editorial Board
The Supreme Court on Monday reaffirmed a bedrock First Amendment principle: that government cannot punish or suppress speech because some people find it offensive…
Many people might find the band’s name offensive, but federal bureaucrats should not be in the business of determining what is and isn’t offensive, or protecting people from hurt feelings, which is essentially what the patent office did.
The beauty of the government our Founders created is that people who find The Slants – or any other name – offensive have plenty of options to express their disgust. They could go to a Slants concert and protest. Or launch a boycott. The antidote to speech you find offensive is more speech, not getting the government to ban it…
The trademark of a little-known rock band might not seem like the stuff that makes America great. But Monday’s decision in The Slants case is what freedom sounds like.
Congress
Concurring Opinions: FAN 157 (First Amendment News) Today: Senate Judiciary Committee to hold hearing on campus free speech
By Ronald K.L. Collins
Those testifying are: Zachary R. Wood, Frederick M. Lawrence, Isaac Smith, Fanta Aw, Eugene Volokh, Richard Cohen, Floyd Abrams
Statement of Floyd Abrams Before the Senate Committee on the Judiciary:
“About two years ago, I gave a speech in Philadelphia at Temple University in which I tried to answer the question of what the single greatest threat to free speech was in the nation. And where it was. I concluded then, as I do now, that the locale of the threat was on our college campuses and that the nature of the threat was nothing less than the suppression of free speech on our campuses. I pointed out, as I would today, that while our problems did not approach those in many other countries around the world, that they were serious, troubling, disturbing…
Most campus activism in public universities is protected by First Amendment and in private universities by internal commitments by universities to abide by First Amendment norms. We need more students, not fewer, to become involved with the public issues of the day and on campuses. Their doing so is indispensable if society is to change for the better. If students disagree with the views of a speaker, they should engage with it, picket it, even walk out on it. . . What is unacceptable is preventing speech from occurring, not protesting it.”
The Media
The Hill: White House reporters fume over off-camera briefings
By Jonathan Easley
The White House press corps vented frustration Monday with press secretary Sean Spicer for conducting off-camera briefings in place of the usual publicly broadcast briefings.
Spicer conducted an off-camera briefing with reporters on Monday in which the press was told it could not film or broadcast audio of the proceedings…
The White House has increasingly forged its own path with the press – holding off-camera briefings and gaggles, imposing restrictions on reporters’ use of audio and video feeds, inviting Cabinet officials to speak only about specific policy issues and rotating between Spicer and deputy press secretary Sarah Huckabee Sanders.
Some of those moves have angered the White House press corps but delighted Trump’s supporters, who view the media as what White House chief strategist Stephen Bannon has dubbed the “opposition party.”
The States
Sioux Falls KELO Radio: Four anti-corruption amendments proposed, one will go to voters
By Mark Russo
State Attorney General Marty Jackley has provided explanations for each of the four versions, and warns that each would likely be challenged on constitutional grounds, if approved by the voters.
Supporters will take the next couple of weeks to decide which of those four to get behind, and then move to the petitioning phase according to leader Doug Kronaizl…
It’s another offshoot from the IM 22 controversy, the ballot measure approved by voters and later repealed by lawmakers over legal concerns. The all-Republican House and Senate later passed a handful of laws with some of IM 22’s better features in them, Kronaizl says his group is looking to pick up the baton and carry those replacements a few steps further. “The things we were hearing from the anti-corruption forums were people were upset with the weakness of the replacements that we were promised.” He went on to list the legalization of donations from labor unions or corporations directly to individual candidates as one of the primary concerns.
Spokesman-Review: New legislative working group on ethics, campaign finance reform hailed as ‘great start toward changing how we do business’
By Betsy Z. Russell
When the Legislative Council, the governing group of Idaho’s legislature outside of legislative sessions, met on Friday, it agreed to the formation of a 10-member interim working group to study ethics and campaign finance laws in Idaho and recommend changes to next year’s Legislature, as proposed by Senate President Pro-Tem Brent Hill, R-Rexburg, and House Speaker Scott Bedke, R-Oakley…
The group will hold its first meeting July 12 at the Capitol; it’s set for 9 a.m. in Room EW 42. The panel is co-chaired by Sen. Patti Anne Lodge, R-Huston; and Rep. Fred Wood, R-Burley. Its members are Sens. Todd Lakey, R-Nampa; Marv Hagedorn, R-Meridian; Mark Harris, R-Soda Springs; and Michelle Stennett, D-Ketchum, the Senate minority leader; and Reps. Tom Loertscher, R-Iona; John VanderWoude, R-Nampa; Sage Dixon, R-Ponderay; and Mat Erpelding, D-Boise, the House minority leader.
In a statement issued Friday, House and Senate Democrats welcomed the move.
