Freedom of Speech

McCullen v. Coakley - Post-Decision SCOTUScast

SCOTUScast 7-3-14 featuring Erik Jaffe and Richard Garnett
Erik S. Jaffe, Richard W. Garnett July 03, 2014

Erik JaffeRichard W. GarnettOn June 26, 2014, the Supreme Court issued its decision in McCullen v. Coakley. This case involved the constitutionality of Massachusetts’s law regarding speech within 35 feet of an abortion clinic. The law makes it a crime for speakers other than clinic employees to “enter or remain on a public way or sidewalk” within thirty-five feet of an entrance, exit, or driveway of an abortion clinic.” The questions are first whether the law violates the First and Fourteenth Amendments, on its face and as applied to petitioners; and second, whether, if Hill v. Colorado permits enforcement of this law, Hill should be limited or overruled.

The Chief Justice delivered the opinion of the Court, which held that the Massachusetts law violates the First and Fourteenth Amendments. The Court found that the law was content neutral but not narrowly tailored to further the government’s legitimate interests. While Massachusetts has a legitimate interest in protecting public safety, patient access to healthcare, and unobstructed use of public sidewalks and streets, the law burdened more speech than necessary to achieve these interests. Justices Ginsburg, Breyer, Sotomayor, and Kagan joined the opinion of the Court. Justice Scalia filed an opinion concurring in the judgment, which Justices Kennedy and Thomas joined. Justice Alito filed a separate opinion concurring in the judgment. The decision of the First Circuit was reversed.

To discuss the case, we have Mr. Erik S. Jaffe, Law Office of Erik S. Jaffe, P.C. and Prof. Richard W. Garnett, IV, Professor of Law & Concurrent Professor of Political Science, Founding Director, Program on Church, State & Society, University of Notre Dame Law School.

Hobby Lobby and McCullen v. Coakley: HHS Mandate and Abortion Clinic Buffer Zones - Podcast

Religious Liberties Practice Group Podcast
Richard W. Garnett, Erik S. Jaffe, Michael P. Moreland, Micah J. Schwartzman July 01, 2014

Hobby LobbyTwo of the biggest cases of the U.S. Supreme Court Term were discussed in a specially-extended Teleforum conference call. In the Hobby Lobby case, the U.S. Supreme Court ruled on whether the federal government may enforce, against private businesses owned by religiously devout owners, the requirement that their employee health plans provide certain no-cost benefits under the Health and Human Services Department’s contraceptive mandate. In McCullen v. Coakley, the Supreme Court determined that a state law-imposed buffer zone around abortion clinics violated the plaintiffs' First Amendment free speech rights. Our panel of four experts discussed the cases, the outcomes, and their implications, and then fielded audience questions in a special 90-minute Teleforum conference call.

  • Prof. Richard W. Garnett, IV, Professor of Law & Concurrent Professor of Political Science, Founding Director, Program on Church, State & Society, University of Notre Dame Law School
  • Erik S. Jaffe, Law Office of Erik S. Jaffe, P.C.
  • Prof. Michael P. Moreland, Vice Dean & Professor of Law, Villanova University School of Law
  • Prof. Micah J. Schwartzman, Edward F. Howrey Professor of Law, University of Virginia School of Law

Are Major Changes in Compelled Speech Coming? Conflict Minerals, Meat Labeling, and More - Podcast

Free Speech & Election Law Practice Group Podcast
Megan L. Brown, Erik S. Jaffe May 19, 2014

DC Circuit Court

Corporations’ First Amendment rights have been litigated frequently. One area of interest in the Circuit Courts is compelled corporate speech—sometimes controversial disclosures, messages and information mandated by the government. As such obligations expand, businesses have brought First Amendment challenges, forcing courts to evaluate what standard the government must meet before it can require private parties to engage in speech.

The U.S. Court of Appeals for the D.C. Circuit recently issued two conflicting decisions on compelled corporate speech. In National Association of Manufacturers v. SEC, the D.C. Circuit found the so-called “conflict minerals” disclosure rule violated the First Amendment, while in American Meat Institute v. Dep’t of Agriculture, a panel sustained a country of origin label requirement. The panels took different approaches to the Supreme Court’s seminal compelled disclosure case, Zauderer v. Office of Disciplinary Counsel, which recognized a narrow opening for compulsions of purely factual and uncontroversial information to prevent consumer deception in advertising. At stake now is whether Zauderer remains a narrow exception to traditional First Amendment review of compelled speech, or whether the government only has to satisfy rational basis review to promote various interests through informational obligations on the private sector.

Notably, the panel in American Meat Institute itself suggested that the full court hear the case, which is set to be heard en banc by the D.C. Circuit on May 19. The D.C. Circuit will be poised to decide how government speech mandates are to be judged under the First Amendment. Its decision could open the door to more disclosure and informational obligations.


  • Megan L. Brown, Partner, Wiley Rein LLP
  • Erik S. Jaffe, Sole Practitioner, Erik S. Jaffe, PC

The Story of Shaun McCutcheon's Campaign Finance Case in the High Court - Podcast

Free Speech & Election Law Practice Group Podcast
Shaun McCutcheon May 16, 2014

Outsider Inside the Supreme Court: A Decisive First Amendment Battle

“There is no right more basic in our democracy than the right to participate in electing our political leaders,” said the U.S. Supreme Court in striking down the federal biennial limit on contributions to non-candidate committees. In his new book, Outsider Inside the Supreme Court: A Decisive First Amendment Battle, plaintiff Shaun McCutcheon explains how he sought to achieve positive change in the political process in bringing his lawsuit. On our Teleforum, Mr. McCutcheon described his road to the nation's highest court, and his quest to bring needed change to Washington by giving more candidates an opportunity to compete in the political arena and offer expanded ideas in the public marketplace.


  • Shaun McCutcheon, owner and Chief Executive Officer, Coalmont Electrical Development Company and Author, Outsider Inside the Supreme Court: A Decisive First Amendment Battle

Is “False” Political Speech Protected? - Susan B. Anthony List v. Driehaus - Podcast

Criminal Law & Procedure and Free Speech & Election Law Practice Groups Podcast
John G. Malcolm April 23, 2014


On Tuesday, April 22, 2014, the Supreme Court heard oral arguments in Susan B. Anthony List v. Driehaus. The Court will answer the following questions: (1) Whether, to challenge a speech-suppressive law, a party whose speech is arguably proscribed must prove that authorities would certainly and successfully prosecute him, as the Sixth Circuit holds, or should the court presume that a credible threat of prosecution exists absent desuetude or a firm commitment by prosecutors not to enforce the law, as seven other Circuits hold; and (2) whether the Sixth Circuit erred by holding, in direct conflict with the Eighth Circuit, that state laws proscribing “false” political speech are not subject to pre-enforcement First Amendment review so long as the speaker maintains that its speech is true, even if others who enforce the law manifestly disagree. Our expert attended the oral arguments and offered his impressions to a call-in audience.


  • John G. Malcolm, Director and Ed Gilbertson and Sherry Lindberg Gilbertson Senior Legal Fellow, Edwin Meese III Center for Legal and Judicial Studies, The Heritage Foundation

[Listen now!]??