Free Speech Arguments

Episode 20: Moms for Liberty v. Wilson County Board of Education Moms for Liberty – Wilson County, TN, et al. v. Wilson County Board of Education, et al., argued before Circuit Judges Jane Branstetter Stranch, Amul R. Thapar, and Eric E. Murphy in the U.S. Court of Appeals for the Sixth Circuit on October 29, 2024. Argued by Brett R. Nolan, Senior Attorney, Institute for Free Speech (on behalf of Moms for Liberty – Wilson County, TN, et al.) and Christopher C. Hayden (on behalf of the Wilson County Board of Education, et al.). Statement of Issues, from the Opening Brief for the Appellants: 1. Whether Plaintiffs are likely to succeed on their claim that the Wilson County Board of Education’s policy requiring that speakers announce their address during the Board’s public-comment period violates the First Amendment. 2. Whether Plaintiffs are likely to succeed on their claim that the Wilson County Board of Education’s policy prohibiting “abusive” speech during its public-comment period violates the First Amendment. 3. Whether Plaintiffs are likely to succeed on their claim that the Wilson County Board of Education’s requirement that individuals who want to speak on non-agenda items during the public-comment period prove their comments are “in the public interest” violates the First Amendment. 4. Whether the Wilson County Board of Education’s partial voluntary cessation moots Plaintiffs’ challenges to the Board’s policies. 5. Whether the Wilson County Board of Education’s partial voluntary cessation prevents a finding of irreparable harm. 6. Whether Plaintiffs are entitled to a preliminary injunction against the address rule, the abusive-speech rule, and the public-interest rule. Resources: Opening Brief for the Appellants Brief of Appellees Institute for Free Speech case page (includes additional case documents and information) 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

Episode 19: Central Maine Power Company, et al. v. Maine Commission on Governmental Ethics and Election Practices, et al. Central Maine Power Company, et al. v. Maine Commission on Governmental Ethics and Election Practices, et al., argued before Circuit Judge Lara Montecalvo, Senior Circuit Judge Jeffrey R. Howard, and Circuit Judge Seth Aframe in the U.S. Court of Appeals for the First Circuit on October 9, 2024. Argued by Jonathan Richard Bolton, Maine Assistant Attorney General (on behalf of the Maine Commission on Governmental Ethics and Election Practices, et al.),  Joshua D. Dunlap (on behalf of Central Maine Power Company, et al.), Paul McDonald (on behalf of Versant Power and ENMAX Corporation), and Timothy Woodcock (on behalf of individual voter plaintiffs). Statement of Issues Presented for Review, from the Brief of Plaintiff—Appellee Enmax Corporation and Versant Power: 1. Whether the district court abused its discretion by preliminarily enjoining enforcement of 21-A M.R.S. § 1064 (the “Act”), which bars all campaign spending of a domestic corporation if 5% or more of its stock is owned by certain foreign entities or such a foreign entity directly or indirectly participates in its campaign-spending decisions, on the grounds that the Act facially violates the corporation’s First Amendment rights. 2. Whether the district court abused its discretion in determining that the Act is expressly preempted by federal law as applied to federal elections when the Act’s plain text does not limit its application to state elections. 3. Whether the district court’s decision enjoining the Act should be affirmed on two alternative grounds left unaddressed by the district court: (i) the Act violates the United States Constitution’s “dormant foreign commerce clause,” Article I, Section 8, Clause 3; and (ii) the Act, as applied to Versant Power, violates its rights under the First Amendment. Resources: CourtListener case docket for Central Maine Power Company Institute for Free Speech amicus brief 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

Episode 18: Little v. Llano County Little, et al. v. Llano County, et al., argued en banc before the U.S. Court of Appeals for the Fifth Circuit on September 24, 2024. Argued by Jonathan F. Mitchell (on behalf of Llano County, et al.), Henry Charles Whitaker (on behalf of Amici Curiae States supporting Llano County), and Matthew Borden (on behalf of Little, et al.). Statement of Issues Presented for Review, from the Brief of Plaintiffs-Appellees: 1. Did the District Court clearly err in finding that Defendants removed 17 books from the public library because of their viewpoint and content, when the books did not meet the library’s own criteria for “weeding” books, Defendants’ internal communications referred to the books as “pornographic filth,” and Defendants offered demonstrably false testimony and pretextual explanations to justify their removal? 2. Did the District Court act within its discretion when it issued a preliminary injunction restoring the status quo by preventing Defendants from hiding the 17 books from library patrons until the merits of the case are decided? 3. Can Defendants moot the need for an injunction by having their lawyer buy the 17 books in question and place them in a non-public room in the library, where their presence is not listed in the library catalogue, is not advertised to patrons, and is not communicated by the library through the channels normally employed to tell library patrons that books are available? From the dissent by Judge Stuart Kyle Duncan in the vacated panel opinion (citations omitted): The commission hanging in my office says “Judge,” not “Librarian.” Imagine my surprise, then, to learn that my two esteemed colleagues have appointed themselves co-chairs of every public library board across the Fifth Circuit. In that new role, they have issued “rules” for when librarians can remove books from the shelves and when they cannot. While I do not doubt my colleagues’ good intentions, these “rules” are a disaster. They lack any basis in law or common sense. And applying them will be a nightmare. Look no further than today’s decision. The two judges in the majority, while agreeing on the rules, cannot agree on how they apply to over half of the 17 books in this case. So, according to Judge Wiener, a library cannot remove It’s Perfectly Normal, a sex-education book for 10-year-olds that has cartoons of people having sex and masturbating. But according to Judge Southwick, removing that book is “likely permissible,” at least “[a]t this stage of the case,” because it contains “sexually explicit material that [i]s not appropriate for children.” Evidently, both judges would not allow a librarian to remove racist books—unless they have a “poor circulation history.” They differ, however, on how the rules apply to a series of children’s books about flatulence. And so we have a genuine first in the Federal Reporter: federal judges debating whether the First Amendment lets a library remove a book called (I kid you not) Larry the Farting Leprechaun. This journey into jurisprudential inanity should never have been launched. There is a simple answer to the question posed by this case: A public library’s choice of some books for its collection, and its rejection of others, is government speech. I dissent.  Resources: CourtListener case docket for Little v. Llano County En Banc Supplemental Brief of Plaintiffs-Appellees Corrected Supplemental Brief of Defendants-Appellants “Discard [Library] Books … That Reflect Gender, Family, Ethnic, or Racial Bias” – analysis by Eugene Volokh (Reason / the Volokh Conspiracy) 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, please visit our website: www.ifs.org

TikTok Inc. v. Merrick Garland, argued before Chief Judge Sri Srinivasan, Circuit Judge Neomi Rao, and Senior Circuit Judge Douglas H. Ginsburg in the U.S. Court of Appeals for the District of Columbia Circuit on September 16, 2024. Argued by Andrew J. Pincus (TikTok petitioners),  Jeffrey L. Fisher (TikTok creator petitioners), and Daniel Tenny (on behalf of Merrick Garland). Background on the case, excerpted from the Brief of the TikTok Petitioners (citations omitted): TikTok is an innovative online platform used by 170 million Americans. These Americans form part of a unique global community with more than 1 billion users worldwide, with whom they create, share, and view videos—“speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge.” All that will end on January 19, 2025, when the Protecting Americans from Foreign Adversary Controlled Applications Act (the “Act”) will ban TikTok throughout the country. The Act is unprecedented. Never before has Congress expressly singled out and shut down a specific speech forum. Never before has Congress silenced so much speech in a single act…. Congress provided no justification for banning TikTok by fiat, while creating substantive and procedural protections, as well as unexplained exclusions, for all other companies alleged to pose the same risks. Without findings, the Court is left with statements of individual Members and a single committee report. Many of those Members criticized cherry-picked content on TikTok, merely reinforcing the Act’s unconstitutionality. The report invoked national security, pointing to the speculative possibility that TikTok could be misused in the future. But a claim of national security does not override the Constitution…. The First Amendment requires this Court to examine such an extraordinary speech restriction with the utmost care and most exacting scrutiny…. Issues Presented, also from the Brief of Petitioners: Whether the Act violates the First Amendment. Whether the Act violates equal protection. Whether the Act is a Bill of Attainder. Whether the Act effects an unconstitutional taking. Resources: Public Redacted Brief for Respondent CourtListener case docket for TikTok Inc. v. Merrick Garland Background on United States v. O’Brien 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