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First Amendment

Supreme Court Rules on Honest-Services Fraud: Robert F. McDonnell v. United States - Podcast

Criminal Law & Procedure and Free Speech & Election Law Practice Groups Podcast
Randall D. Eliason, William J. Haun, Stephen R. Klein, Tara Malloy June 29, 2016

On June 27, 2016, the United States Supreme Court issued a unanimous opinion in Robert F. McDonnell v. United States. The Court vacated the public corruption convictions of former Virginia Governor Bob McDonnell, finding that the prosecution failed to properly instruct the jury on the definition of an “official action” as used in the federal bribery statute, Hobbs Act, and honest-services fraud statute. However, the Court rejected McDonnell's claims that the honest services statute and Hobbs Act are unconstitutional, and left the Court of Appeals to reconsider whether McDonnell had committed an "official act" under the Court's new definition. Our experts discussed the impact of the opinion, and debated its merits, as it relates to public corruption law and the criminal law more generally, as well as to the First Amendment and campaign finance law.

Featuring:

  • Prof. Randall D. Eliason, George Washington University Law School
  • William J. Haun, Associate, Hunton & Williams LLP
  • Stephen R. Klein, Attorney, Pillar of Law Institute
  • Tara Malloy, Deputy Executive Director, Campaign Legal Center

Net Neutrality Survives D.C. Circuit Challenge: U.S. Telecom Association v. FCC - Podcast

Telecommunications & Electronic Media Practice Group Podcast
Brett A. Shumate, Adam J. White June 20, 2016

On Wednesday, June 14, the D.C. Circuit Court of Appeals upheld the Federal Communications Commission’s controversial reclassification of broadband internet service as a telecommunications service subject to common carrier regulation under Title II of the Communications Act. The case, which many observers believe may ultimately end up before the United States Supreme Court, touches on major questions about the Communications Act, as well as First Amendment issues and larger administrative law controversies, including Chevron deference. Our experts discussed all of these angles and the outlook for the case going forward.

Featuring:

  • Brett A. Shumate, Partner, Wiley Rein LLP
  • Adam J. White, Research Fellow, Hoover Institution

Heffernan v. City of Paterson - Post-Decision SCOTUScast

SCOTUScast 5-17-16 featuring Adele Keim
Adèle Keim May 17, 2016

On April 26, 2016, the Supreme Court decided Heffernan v. City of Paterson. Jeffrey Heffernan was a police officer for the City of Paterson, New Jersey. A fellow police officer observed Heffernan picking up a campaign sign for the mayoral candidate running against the incumbent. Although Heffernan disclaimed any political motives and said he was merely picking the sign up for his mother, his supervisor demoted him. Heffernan sued Paterson claiming a violation of his First Amendment rights, but lost on the grounds that, his supervisor’s erroneous belief notwithstanding, the fact that Heffernan was not actually engaged in political activity doomed his claim. The U.S. Court of Appeals for the Third Circuit affirmed the trial court’s judgment. The question before the Supreme Court was whether the First Amendment bars the government from demoting a public employee based on a supervisor's perception that the employee supports a political candidate.

By a vote of 6-2, the Supreme Court reversed the decision of the Third Circuit and remanded the case. Justice Breyer delivered the opinion of the Court, which held that when an employer demotes an employee out of a desire to prevent the employee from engaging in protected political activity, the employee is entitled to challenge that unlawful action under the First Amendment and Section 1983 even if the employer's actions are based on a factual mistake about the employee's behavior. Justice Breyer was joined by the Chief Justice and Justices Kennedy, Ginsburg, Sotomayor, and Kagan. Justice Thomas filed a dissenting opinion, in which Justice Alito joined.

To discuss the case, we have Adele Keim, who is counsel at The Becket Fund for Religious Liberty.

Supreme Court to Consider Honest-Services Fraud: Oral Arguments Heard in Robert F. McDonnell v. United States - Podcast

Criminal Law & Procedure and Free Speech & Election Law Practice Groups Podcast
William J. Haun, Stephen R. Klein April 27, 2016

On Wednesday, April 27, the United States Supreme Court heard oral arguments in Robert F. McDonnell v. United States. The Court will review the public corruption convictions of former Virginia Governor Bob McDonnell to determine whether the definition of “official action” as used in the federal bribery statute, Hobbs Act, and honest-services fraud statute is limited to exercising actual governmental power or the threat or pressure to do so. If the definition is not so limited, the Court will also consider whether the Hobbs Act and honest-services fraud statute are unconstitutional—given that such a broad definition could include political activity protected by the First Amendment. Our experts attended the oral arguments and offered a summary and analysis to Federalist Society members.

Featuring:

  • William J. Haun, Associate, Hunton & Williams LLP
  • Stephen R. Klein, Attorney, Pillar of Law Institute

Friedrichs v. California Teachers Association - Post-Decision SCOTUScast

SCOTUScast 4-20-16 featuring Richard A. Epstein
Richard A. Epstein April 20, 2016

On March 29, 2016, the Supreme Court decided Friedrichs v. California Teachers Association. A group of public school employees sued the California Teachers Association and various other entities, arguing that the agency shop arrangement itself--as well as the opt-out requirement--violated the First Amendment. The district court denied their claim and the U.S. Court of Appeals for the Ninth Circuit affirmed based on existing precedent and the 1997 Supreme Court decision Abood v. Detroit Board of Education. The two questions before the Supreme Court were (1) whether the Abood precedent should be overruled and public-sector “agency shop” arrangements invalidated under the First Amendment; and (2) whether it violates the First Amendment to require that public employees affirmatively object to subsidizing nonchargeable speech by public-sector unions, rather than requiring that employees affirmatively consent to subsidizing such speech.

In a one-sentence per curiam opinion, the judgment of the Ninth Circuit was affirmed by an equally divided Supreme Court, a 4-4 split.

To discuss the case, we have Richard A. Epstein, the Peter and Kirsten Bedford Senior Fellow at the Hoover Institution, Laurence A. Tisch Professor of Law, New York University School of Law and Professor Emeritus and a senior lecturer at the University of Chicago Law School.