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Free Speech & Election Law

The Court Speaks on Free Speech - Podcast

Free Speech & Election Law Practice Group Podcast
Eugene Volokh June 24, 2015

On Jun 18, the U.S. Supreme Court decided two cases with free speech implications. In Walker v. Texas Division, Sons of Confederate Veterans, the Court held that the speech involved in a specialty license plate was government speech, and the government can regulate its content. In Reed v. Town of Gilbert, the Court held that the content-based time, size and location regulation of a church's signage did not pass strict scrutiny. Our expert discussed the details of the opinions and took questions from the audience.

  • Prof. Eugene Volokh, Gary T. Schwartz Professor of Law, UCLA School of Law

Walker v. Texas Division, Sons of Confederate Veterans, Inc and Reed v. Town of Gilbert - Post-Decision SCOTUScast

SCOTUScast 6-23-15 featuring Eugene Volokh.
Eugene Volokh June 23, 2015

 

On June 18, 2015, the Supreme Court issued two highly anticipated decisions in free speech cases, Walker v. Texas Division, Sons of Confederate Veterans, Inc., and Reed v. Town of Gilbert.

Walker v. Texas Division, Sons of Confederate Veterans, Inc. concerned two First Amendment issues: the first was whether content displayed on specialty license plates issued by the state is government speech immune from First Amendment prohibition on viewpoint discrimination; the second was whether Texas engaged in viewpoint discrimination when it rejected a specialty license plate design which included an image of a Confederate Flag.

In an opinion delivered by Justice Breyer, the Court held by a vote of 5-4 that Texas’s specialty license plate designs constitute government speech, and Texas was therefore entitled to reject the design proposed by Sons of Confederate Veterans. The decision of the Fifth Circuit to the contrary was reversed. Justices Thomas, Ginsburg, Sotomayor, and Kagan joined Justice Breyer’s majority opinion. A dissenting opinion was filed by Justice Alito, joined by Chief Justice Roberts and Justices Scalia and Kennedy.

Reed v. Town of Gilbert involved a First Amendment challenge to the sign code for Gilbert, Arizona, which imposes more stringent restrictions on signs directing the public to meetings of nonprofit groups--including churches--than on other signs. By a vote of 9-0, the Court reversed the judgment of the Ninth Circuit (which had rejected the challenge) and remanded the case.  Justice Thomas, joined by the Chief Justice and Justices Scalia, Kennedy, Alito, and Sotomayor, held that the Code’s sign provisions were content-based restrictions of speech that could not survive strict scrutiny. Justice Alito also filed a concurring opinion, joined by Justices Kennedy and Sotomayor. Justice Breyer filed an opinion concurring in the judgment. Justice Kagan, joined by Justices Ginsburg and Breyer, also filed an opinion concurring in the judgment.

To discuss the case, we have Professor Eugene Volokh, the Gary T. Schwartz Professor of Law at the UCLA School of Law.

Elonis v. United States - Post-Decision SCOTUScast

SCOTUScast 6-11-15 featuring John Elwood and Kent Scheidegger
John Elwood, Kent S. Scheidegger June 11, 2015

On June 1, 2015, the Supreme Court issued its decision in Elonis v. United States. This case involves two questions. First, this case asks whether the First Amendment requires proof of the defendant’s subjective intent to threaten in order to convict someone of threatening another person under 18 U.S. C. § 875(c), or whether it is sufficient to demonstrate that a “reasonable person” would consider the statement to be threatening. The second question in this case is whether, as a matter of statutory interpretation, conviction of another person requires proof of the defendant’s subjective intent to threaten.

In an opinion delivered by the Chief Justice, the Court held that general intent is not sufficient to support a conviction under 18 U.S.C. 875(c) and that the imposition of criminal penalties under the statute requires proof of a “guilty mind.” 

Chief Justice Roberts’ opinion for the Court was joined by Justices Scalia, Kennedy, Kagan, Ginsburg, Breyer, and Sotomayor. Justice Alito filed a separate opinion concurring in part and dissenting in part. Justice Thomas filed a dissent. 

To discuss the case, we have Kent S. Scheidegger, Legal Director & General Counsel, Criminal Justice Legal Foundation and John Elwood, Partner, Vinson & Elkins LLP.

Supreme Court Rules on Facebook Threats – Elonis v. United States - Podcast

Criminal Law & Procedure Practice Group Podcast
John Elwood, Kent S. Scheidegger June 09, 2015

On Monday, June 1, the U.S. Supreme Court overturned the conviction of Anthony Douglas Elonis, who was prosecuted under a 1939 law prohibiting the communication of threats for allegedly threatening his estranged wife via Facebook. Has the Supreme Court clarified the legal status of violent speech on the internet, or merely added to the confusion? Our experts discussed the opinion and its implications.

  • John Elwood, Partner, Vinson & Elkins LLP
  • Kent S. Scheidegger, Legal Director & General Counsel, Criminal Justice Legal Foundation

Censoring Specialty License Plates - Podcast

Free Speech & Election Law Practice Group Podcast
Eugene Volokh June 04, 2015

Many states make money by letting a wide range of groups order specialty license plates for their members. The specialty plates tend to convey a message or an affiliation. May a state reject a proposed plate because it deals with “politically sensitive and emotionally charged issues?" More specifically, may a state forbid a “Choose Life” specialty plate, but allow a “Union Yes” plate and one that says “Support Police?” The Second Circuit just upheld such a policy, by a 2-to-1 vote. Is the decision consistent with the First Amendment?

  • Prof. Eugene Volokh, Gary T. Schwartz Professor of Law, UCLA School of Law