Episódios
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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
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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. BoydThe 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
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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. MartinezTime 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
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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.
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[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.”
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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. GreenThe 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
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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.
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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 MackeyThe 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
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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 GilliamTime 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
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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.”
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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
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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.”
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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 LawTime 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
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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
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Argued before the Supreme Court of the United States on February 26, 2024.
The petition granted was "limited to Questions 1 and 2 presented by the Solicitor General in her brief for the United States as amicus curiae."
From the Brief for the United States as Amicus Curiae
These cases concern laws enacted by Florida and Texas to regulate major social-media platforms like Facebook, YouTube, and X (formerly known as Twitter). The relevant provisions of the laws differ in some respects, but both laws (1) restrict covered platforms’ ability to engage in content moderation by removing, editing, or arranging the user-generated content presented on their websites, and (2) require covered platforms to provide individualized explanations for certain forms of content moderation. The questions presented are:
Whether the laws’ content-moderation restrictions comply with the First Amendment. Whether the laws’ individualized-explanation requirements comply with the First Amendment.Resources:
Moody v. NetChoice, LLC docket NetChoice, LLC v. Paxton docket Institute for Free Speech NetChoice v. Paxton and Moody v. NetChoice amicus briefTime Stamps:
(00:00:00) Moody v. NetChoice, LLC Begins
Henry Charles Whitaker, Counsel of Record, Florida Office of the Attorney General
(00:00:55) Paul D. Clement, Counsel of Record for NetChoice, LLC
(01:43:00) Elizabeth Prelogar, Solicitor General of the United States
(02:20:15) Henry Charles Whitaker Rebuttal
(02:23:00) NetChoice, LLC v. Paxton Begins
Paul D. Clement, Counsel of Record for NetChoice, LLC(02:53:47) Elizabeth Prelogar, Solicitor General of the United States
(03:03:37) Aaron Lloyd Nielson, Counsel of Record, Office of the Texas Attorney General
(03:40:09) Paul D. Clement 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
