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Free Speech & Election Law

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  • Election Law
  • Free Speech & Harassment Codes
  • Media Law

Projects

Keynote Address by Richard Epstein - Event Audio/Video

2017 National Student Symposium
Richard A. Epstein, Shiva H. Logarajah March 15, 2017

Professor Richard Epstein delivered the keynote address titled "A common lawyer looks at the constitutional protection for freedom of speech" during the 2017 National Student Symposium at Columbia Law School on Saturday, March 4, 2017.

The theme of this talk is what happens if we think about freedom of speech as an ideal, without any of the standard constitutional glosses—strict scrutiny, purposive interpretations—and then how does it play out. It does differ from the current law, quite radically on some key question that lie at the border line between tortious actions and free speech: offensive behavior, intentional infliction of emotional distress, defamation, deceit, coercion and the like. The answers sometimes overlap and sometimes differ, and I hope to explain why the common law approach is superior.

Banquet Dinner
7:00 p.m. -10:00 p.m. 
Lerner Hall, Roone Arledge Auditorium

  • Keynote: Prof. Richard Epstein, Laurence A. Tisch Professor of Law, New York University School of Law
  • Introduction: Mr. Shiva H. Logarajah, Symposium Chair, Columbia Law School Student Chapter

Columbia Law School
New York, New York

Universities and the First Amendment - Event Audio/Video

2017 National Student Symposium
Robert C. Post, Philip A. Hamburger, Suzanne Goldberg, Michael W. McConnell, Thomas M. Hardiman March 15, 2017

Universities have long been thought of, and cherished, as places for the free exchange of ideas. This idea has, however, come under pressure. Student groups have now routinely exercised pressure to keep people who they disagree with off campus. And safe spaces and trigger warnings—which limit speech that some have deemed offensive—have become regular features at universities across the nation. 

Many see the climate of shouting-down or protesting the expression of others' viewpoints as the symbolic beginning of an era limiting the freedom of speech on college campuses. While surveys seem to show a majority of students disagree with universities curtailing speech, even when it is offensive, vocal minorities with opposing views have been the ones capturing news headlines and the attention of the public at large.

With the accessibility to speech provided by the internet and viral sharing of information, expression and speech spread with more ease than ever, but this same technology creates opportunities for back-lash on social media and gives a larger stage to those who would threaten the free market of ideas at our nation's universities.

The First Amendment protects principles which have always required vigilance to maintain, and today's world makes no exception. This panel will explore how these developments have affected intellectual discourse on campus and if they are conducive to a meaningful learning experience at our universities.

This panel was presented at the 2017 National Student Symposium on Saturday, March 4, 2017, at Columbia Law School in New York City, New York.

Panel 4: Universities and the First Amendment
4:00 p.m. - 5:45 p.m.
Jerome Greene Hall 104

  • Prof. Robert Post, Dean and Sol & Lillian Goldman Professor of Law, Yale Law School
  • Prof. Phillip Hamburger, Maurice and Hilda Friedman Professor of Law, Columbia Law School
  • Prof. Suzanne Goldberg, Executive Vice President for University Life, Columbia University; Herbert and Doris Wechsler Clinical Professor of Law, Columbia Law School
  • Prof. Michael McConnell, Richard and Frances Mallery Professor of Law; Director, Constitutional Law Center; Senior Fellow, Hoover Institution
  • Moderator: Hon. Thomas Hardiman, U.S. Court of Appeals, Third Circuit

Columbia Law School
New York, New York

ABA Model Rule 8.4 - Event Audio/Video

2017 National Student Symposium
Eugene Volokh, Robert N. Weiner, Lavenski Smith March 15, 2017

In August 2016, the American Bar Association (ABA) added new anti-discrimination guidelines for lawyers to its Model Rules of Professional Conduct through section 8.4. This section now binds lawyers to adhere to particular speech codes in the many states that have adopted it.

The provision labels engagement “in conduct that [a] lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law." The ABA has defined discrimination and harassment to include “harmful verbal or physical conduct that manifests bias or prejudice towards others. Harassment includes sexual harassment and derogatory or demeaning verbal or physical conduct. Sexual harassment includes unwelcome sexual advances, requests for sexual favors, and other unwelcome verbal or physical conduct of a sexual nature." The conduct guidelines extend to “the practice of law," including, “representing clients; interacting with witnesses, coworkers, court personnel, lawyers and other while engaged in the practice of law; operating or managing a law firm or law practice; and participating in bar association, business or social activities in connection with the practice of law."

Some have described this section as infringing on the rights on lawyers to speak their mind, while others have argued it is necessary to prevent discrimination within the profession. This debate will discuss the implications of Model Rules of Professional Conduct 8.4 and its impact on workplace discrimination and lawyers' rights.

This debate was presented at the 2017 National Student Symposium on Saturday, March 4, 2017, at Columbia Law School in New York City, New York.

Debate: ABA Model Rule 8.4
11:15 a.m. -12:30 p.m.
Jerome Greene Hall 104

  • Prof. Eugene Volokh, Gary T. Schwartz Professor of Law, UCLA School of Law
  • Mr. Robert N. Weiner, Partner, Arnold & Porter Kaye Scholer LLP
  • Moderator: Hon. Lavenski Smith, U.S. Court of Appeals, 8th Circuit

Columbia Law School
New York, New York

Campaign Finance and Free Speech - Event Audio/Video

2017 National Student Symposium
Bradley A. Smith, Richard Pildes, John O. McGinnis, Ciara Torres-Spelliscy, Richard Sullivan March 15, 2017

Congress' passage of the Bipartisan Campaign Reform Act of 2002 did not end the debate on campaign finance. Instead, it arguably created more legal questions than it did answers. 

The Act's passage quickly unleashed subsequent litigation, resulting in a number of Supreme Court decisions directly related to the BCRA and, more broadly, to general laws regulating campaign finance. These recent Supreme Court cases, including the much-discussed Citizens United decision, struck down many campaign regulations on the grounds that they infringe upon individuals' First Amendment rights. Some have charged that decisions like these have increased the influence of a privileged few in our political system. Others have argued that these decisions are not only doctrinally correct, but the prudential fears many have expressed have not been borne out.

Still, Americans remain discontented with the current campaign finance regime. According to a New York Times/CBS News poll in 2015, 46% of respondents agree that the country needs to completely rebuild its campaign finance system, while 39% believed it requires fundamental change. Today, groups and individuals continue to fight limits on political contributions, and restrictions on political speech, while others push for stricter regulations. 

This panel will weigh in on whether decisions like Citizens United are correct as a matter of law, and if they are desirable from a policy perspective. The panel will also discuss the jurisprudential foundations of Citizens United—including the landmark case of Buckley v. Valeo—and where future fights over campaign finance regulations are likely to occur.

This panel was presented at the 2017 National Student Symposium on Saturday, March 4, 2017, at Columbia Law School in New York City, New York.

Panel 2: Campaign Finance and Free Speech
9:30 a.m. -11:00 a.m.
Jerome Greene Hall 104

  • Prof. Brad Smith, Josiah H. Blackmore II/Shirley M. Nault Professor of Law, Capital University Law School; Former FEC Commissioner
  • Prof. Richard Pildes, Sudler Family Professor of Constitutional Law, New York University School of Law
  • Prof. John O. McGinnis, George C. Dix Professor in Constitutional Law, Northwestern University School of Law
  • Prof. Ciara Torres-Spelliscy, Fellow, Brennan Center for Justice; Associate Professor of Law, Stetson University College of Law
  • Moderator: Hon. Richard J. Sullivan, U.S. District Judge for the Southern District of New York

Columbia Law School
New York, New York

Privacy and Freedom of the Press - Event Audio/Video

2017 National Student Symposium
Richard A. Epstein, Irina D. Manta, Jameel Jaffer, Steve Coll, Reena Raggi, Gillian Lester March 15, 2017

The Internet has made information not only much more accessible, it has allowed almost anyone to be a provider of such information. 

This has not been without consequence: the refusal to take down an obscene video led to an eye-popping $140 million jury verdict and the subsequent collapse of Gawker Media. Personal e-mails or national secrets can quickly turn into political ammunition through the amplification of Wikileaks. A wide range of individuals, from Dan Rather to former President Barack Obama, have criticized the spread of misinformation. They claim false information is being dressed up as legitimate online journalism with the intent to deceive and misinform. Technology CEOs have felt the pressure. For example, Facebook CEO Mark Zuckerberg is devoting considerable resources to developing methods to regulate speech on his platform— probably the most significant in the world. But, as Zuckerberg himself said, “identifying 'the truth' is complicated." 

This panel will explore this new reality and whether it necessitates new regulation. Will any effort be imprecise, such that protected speech will necessarily be silenced? Does such regulation go against the principles enshrined in the First Amendment?

This panel was presented at the 2017 National Student Symposium on Friday, March 3, 2017, at Columbia Law School in New York City, New York.

Panel 1: Privacy and Freedom of the Press
6:30 p.m. -8:00 p.m.
Jerome Greene Hall 104

  • Prof. Richard Epstein, Laurence A. Tisch Professor of Law, New York University School of Law
  • Prof. Irina Manta, Professor of Law and Director of the Center for Intellectual Property Law, Maurice A. Deane School of Law at Hofstra University
  • Mr. Jameel Jaffer, Director of the Knight First Amendment Institute at Columbia University
  • Prof. Steve Coll, Dean & Henry R. Luce Professor of Journalism, Columbia Journalism School; Staff Writer, The New Yorker
  • Moderator: Hon. Reena Raggi, Circuit Judge, US Court of Appeals for the Second Circuit
  • Opening: Dean Gillian Lester, Dean and Lucy G. Moses Professor of Law, Columbia Law School

Columbia Law School
New York, New York

Courthouse Steps: Packingham v. North Carolina - Podcast

Free Speech & Election Law Practice Group Podcast
Ilya Shapiro March 02, 2017

In Packingham v. North Carolina, the Supreme Court will decide whether the First Amendment bars a state from banning citizens from accessing social media sites like Facebook and Twitter. A North Carolina state makes it a felony for any person on the state's registry of former sex offenders to "access" a wide array of websites--including Facebook, YouTube, and nytimes.com--that enable communications among users if the site is known to allow minors to have accounts. The statute does not require the state to prove the defendant has actually had contact with a minor, intended to do so, or accessed a website for any illicit or improper purpose. ​Lester Packingham was convicted of violating the law for a Facebook post in which he celebrated the dismissal of a traffic ticket, declaring "God is Good!" Packingham and his supporters contend that law amounts to a sweeping, overbroad, and vague ban on protected speech untailored to any legitimate interest and unjustified by any compelling need.

Featuring:

  • Ilya Shapiro, Senior Fellow in Constitutional Studies, Cato Institute

Courthouse Steps: Lee v. Tam - Podcast

Litigation, Intellectual Property, and Free Speech & Election Law Practice Groups Teleforum
Megan L. Brown, Dwayne D. Sam January 19, 2017

Can the government police speech it thinks is offensive, even when members of the group the government seeks to protect disclaim any offense? Section 2(a) of the Lanham Act allows the government to deny trademark registration to "disparaging" speech. On Wednesday, January 18, the Supreme Court will hear oral argument in Lee v. Tam, a case challenging the constitutionality of this statute.

In Lee, an Asian-American rock band called “The Slants” was denied trademark registration after the Patent and Trademark Office found the trademark disparaging to Asians. A panel of the U.S. Court of Appeals for the Federal Circuit affirmed the decision. But the en banc Federal Circuit—without being asked—decided to vacate that decision and consider whether § 2(a) violates the First Amendment. The full Federal Circuit ultimately reversed the panel decision. The federal government then asked the Supreme Court to weigh in.

Is the Court likely to affirm the Federal Circuit decision striking down the disparagement clause as violative of the First Amendment? And what will be the implications if it does? Megan Brown and Dwayne Sam of Wiley Rein LLP attended the oral arguments and offered their impressions and predictions during this Courthouse Steps Teleforum conference call.

Featuring:

  • Ms. Megan L. Brown, Partner, Wiley Rein LLP
  • Mr. Dwayne D. Sam, Associate, Wiley Rein LLP

Lee v. Tam: “Disparaging” Trademarks & the First Amendment

Short video featuring John Shu
John Shu January 17, 2017

Can the Patent and Trademark Office (PTO) deny a trademark to a group with an offensive name - or does the First Amendment invalidate the provision of trademark law under which the denial was made?  Attorney and legal commentator John Shu explains the dispute between the PTO and an Asian-American rock band seeking to trademark the name “The Slants” in the case Lee v. Tam.  The Supreme Court will hear oral argument on January 18th.

Helping Americans to Speak Freely

Federalist Society Review, Volume 18
Jeremy B. Rosen, Felix Shafir December 15, 2016
censored speech

Jeremy Rosen and Felix Shafir discuss different types of state anti-SLAPP laws and argue that federal anti-SLAPP legislation would help to improve the legal landscape for free speech by offering a backstop for targets of speech-suppressing litigation. [Read Now]

ABA Rule 8.4 - Podcast

Professional Responsibility & Legal Education and Free Speech & Election Law Practice Groups Podcast
Eugene Volokh December 13, 2016

Professor Eugene Volokh of the UCLA School of Law joined us Monday, December 12 to discuss the ABA’s new Rule 8.4 on professional misconduct. The Rule states that it is professional misconduct for a lawyer to “engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.” The ABA goes further in Comments, stating that “Such discrimination includes harmful verbal or physical conduct that manifests bias or prejudice towards others,” and that the Rule applies in any situation, even social, that is “connected to the practice of law.” Professor Volokh discussed the First Amendment implications and reaction to the new rule.

Featuring:

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