Free Speech

What does Barr v. American Association of Political Consultants have to do with state and local governments? The question the Supreme Court will decide in this case is whether allowing robocalls for government-debt only violates the First Amendment. State and local governments aren’t likely recipients of such calls.

In one word the answer is Reed; as in Reed v. Town of Gilbert (2015). In Reed the Supreme Court held that strict (usually fatal)-scrutiny applies to content-based restrictions on speech, and the Court defined content-based broadly. In short Reed was a bad decision for state and local governments, which regularly regulate content-based speech.  

The Telephone Consumer Protection Act (TCPA) prohibits automatic dialing or prerecorded calls to cell phones with three exceptions—emergencies, consent, and debt collection owed to or guaranteed by the United States. The American Association of Political Consultants claims the third exception violates the First Amendment.

Following Thompson v. Hebdon states with low individual-to-candidate or individual-to-group campaign contribution limits may want to review their constitutionality.

In a per curiam (unauthored) opinion the Supreme Court instructed the Ninth Circuit to decide again whether Alaska law, which limits the amount an individual can contribute to a candidate for political office or to an election-oriented group other than a political party...

May a private entity running a public access channel ban speakers based on the content of their speech—something a government entity running the same channels could not do? Yes, the Supreme Court held in a 5-4 opinion in Manhattan Community Access Corporation v. Halleck. Why? Because the First Amendment doesn’t apply to private entities in this instance.

The Cable Communications Policy Act of 1984 authorizes states and local governments to require cable operators to set aside channels on their cable systems for public access. Under New York law the cable operator operates the public access channels unless the local government chooses to do so or designates a private entity to do so.

New York City designated a private nonprofit, Manhattan Neighborhood Network (MNN), to operate the public access channels in Manhattan. MNN suspended two producers from its facilities and services after MNN ran a film they produced about MNN’s alleged neglect of the East Harlem community. The producers claimed MNN violated their First Amendment free speech rights when it “restricted their access to the public access channels because of the content of their film.”

It has been three cases and nearly a decade in the making but the Supreme Court has finally ruled in Nieves v. Bartlett that the existence of probable cause defeats a First Amendment retaliatory arrest case…with one, small caveat. The State and Local Legal Center (SLLC) filed an amicus brief in favor of the broader ruling in this case.

While police officer Luis Nieves and Russell Bartlett have different versions of what happened at Artic Man, a weeklong winter sports festival in Alaska, even the Ninth Circuit agreed that Sergeant Nieves had probable cause to arrest Bartlett. Sergeant Nieves knew Bartlett had been drinking and talking loudly when he saw Bartlett stand close to another officer and the officer push Bartlett away. But Bartlett claimed Sergeant Nieves really arrested him in violation of his First Amendment free speech rights because he had refused to speak to Sergeant Nieves previously, which Bartlett reminded Sergeant Nieves of when he was being arrested.

The Supreme Court decides numerous difficult cases each term. It may be surprising that no issue has vexed the Court like whether probable cause to arrest someone means they can’t bring a First Amendment retaliation case. In Nieves v. Bartlett the State and Local Legal Center (SLLC) argues in an amicus brief (for the third time) that probable cause defeats First Amendment retaliation claims.   

Russell Bartlett was attending Arctic Man, an Alaskan snowmobile race, when he declined to talk to Police officer Luis Nieves who was patrolling the large outdoor party. Officer Nieves later observed Bartlett yelling at a separate officer, Bryce Weight, and Weight pushing Bartlett away. Believing Bartlett posed a danger to Officer Weight, Officer Nieves arrested Bartlett. Bartlett alleges that Nieves said “bet you wish you had talked to me now” in the process of the arrest.

Bartlett sued Officer Nieves claiming Nieves arrested him in retaliation for his refusal to initially speak to Nieves in violation of the First Amendment. The district concluded there was probable cause to arrest Bartlett. All federal circuit courts to decide this issue except the Ninth Circuit have held that to bring a First Amendment retaliatory arrest case plaintiffs must be able to prove the absence of probable cause to arrest them, which Bartlett could do not in this case.

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