First Amendment

Twitter has filed a lawsuit challenging the federal government's gag order restricting the extent the social media company can reveal the scope of government surveillance on its service, Ars Technica's David Kravets reports. Twitter argues that it faces an unconstitutional prior restraint on its speech because of the gag order: "'Twitter’s ability to respond to government statements about national security surveillance activities and to discuss the actual surveillance of Twitter users is being unconstitutionally restricted by statutes that prohibit and even criminalize a service provider's disclosure of the number of national security letters (“NSLs”) and court orders issued pursuant to FISA [Foreign Intelligence Surveillance Act] that it has received, if any.'"

The U.S. Supreme Court has granted certiorari in the case of a Florida judicial candidate who argues the state's ban on letting candidates for the bench directly seek campaign contributions violates her First Amendment rights, the Associated Press reports. "The Florida Supreme Court upheld the ban in May, saying it was justified because such conduct raises an appearance of impropriety and may lead the public to question a judge's impartiality," AP further reports. The candidate argues the law is meaningless because campaign committees can directly seek contributions.

The Pittsburgh Post-Gazette has sued to stop the practice of Governor Tom Corbett's administration and other executive-branch agencies of destroying emails after five days, the newspaper's Bill Shackner reports. The lawyers for the newspaper argued that "the state’s practice violates the due process rights of the public seeking release of public records under Pennsylvania’s Right-to-Know Law," Shackner further reports.

In another open-records development in Pennsylvania, a grand jury judge lifted a stay blocking the release of what has been described as "as sexually-charged emails circulated among certain Attorney General staff and prosecutors during the course of the Jerry Sandusky probe," according to the Harrisburg Patriot-News' Charles Thompson.

The U.S. Supreme Court will be getting an education on "the rhythmic, slangy — sometimes violent — poetry of rap music" as it considers the standard by which violent speech can be judged as a true threat this term, The National Law Journal's Tony Mauro reports. Elonis v. United States, which is set for argument December 1, "asks whether the online posting of threatening language like that found in rap lyrics violates a federal law against transmitting 'any threat to injure the person of another' across state lines," Mauro further reports. Anthony Elonis was convicted of threatening law enforcement, his spouse and others from the rap-like posts he made on Facebook. Elonis argues that pure speech must be judged by a subjective intent standard, but the government says it only needs to prove that a reasonable person would view speech as a true threat.
 

According to Food Safety News, U.S. District Court Judge B. Lynn Winmill has allowed parts of a challenge to Idaho's ag-gag law to proceed, including a claim that it violates the First Amendment: "'Laws that restrict more protected speech than necessary violate the First Amendment,' Winmill wrote. 'Because this question of whether section 18-7042 burdens more speech that necessary remains unanswered, the court will not dismiss (Animal Legal Defense Fund’s) First Amendment claim.'"

The U.S. Supreme Court is being asked to consider whether the Animal Enterprise Terrorism Act chills animals rights demonstrations, writes Jamie Schuman of Supreme Court Brief (the federal law prohibits anyone from intentionally causing the loss of money or property to an institution using animals). While the court ruled in Clapper v. Amnesty International that harm must be "certainly impending" for plaintiffs to get standing, the Center for Constitutional Rights, counsel for the five animal-rights activists bringing the challenge, argues the activists have standing because they have an objectively reasonable fear that the government will use the law to punish their speech, Schuman further reports. CCR wants the Supreme Court to grant certiorari, vacate the lower court opinion and remand the case without oral argument as the high court did in another pre-enforcement challenge to a criminal statute. The justices declined to apply Clapper in the case, Schuman also reports.

The Guardian, the Oklahoma Observer, the American Civil Liberties Union and the ACLU of Oklahoma have filed a lawsuit seeking to allow journalists and other witnesses to executions to "see everything that happens from the moment an inmate enters the execution chamber," the Washington Post reports. The lawsuit cites the fact that witnesses were not allowed to see the entirety of the execution of Clayton Lockett, whose botched killing left him writhing and grimacing before he finally died.

After a needle was inserted into Lockett's groin, his vein collapsed and the lethal-injection drugs did not get absorbed into his bloodstream, according to officials. When things went awry, correctional officials lowered the blinds and never lifted them back up, the Post reports. Lockett's final moments were not observed by the public.

I am really struck that, through public records, The Arizona Republic was able to learn that Arizona death row inmate Joseph Wood was injected 15 times with drugs midazolam and hydromorphone over a two-hour period before he was finally pronounced dead. It was supposed to just take two doses to kill him. The Associated Press reported he "gasped more than 600 times over the next hour and 40 minutes." But before Wood was executed he lost his First Amendment fight to find out the details of the state's methods for lethal injections, including where it obtains its supply of the drugs or the executioners' medical qualifications. While the Ninth Circuit put his execution on hold, according to the AP, the Supreme Court lifted the stay. So Wood couldn't get access to information before his execution. But it can be obtained after the fact.

Four people, including an attorney working as a legal observer, were awarded $185,000 this week for being arrested wrongfully during the 2004 Republican Convention in New York City, Reuters reports. U.S. District Judge Richard Sullivan already ruled the arrests were illegal; the trial was held to determine the amount of damages.

The U.S. Supreme Court has granted certiorari in a criminal case involving the free speech rights of a criminal defendant who used threatening language in the form of rap lyrics on Facebook, the Associated Press reports.  (I covered the trial of Anthony Elonis when I worked for the Legal Intelligencer, Pennsylvania's legal newspaper.)

Federal prosecutors successfully got the district judge to apply an objective standard for the jurors to decide if Elonis' posts were threatening, but Elonis' counsel argued that a subjective standard should have been applied, AP reports.

The U.S. Supreme Court has said that "true threats" are not protected speech, AP also reports.