First Amendment

Ergobaby, a manufacturer of baby carriers, has revealed itself as the company that fought to keep its court fight over a consumer product safety report secret, Legal Times reports. The Fourth Circuit ruled that the district court should not have let the company shield its name from the public as it fought to keep the Consumer Product Safety Commission from publishing an incident report about an infant's death--allegedly from one of its products--in an online database.

The U.S. Supreme Court, 5-4, has upheld legislative prayer in the Town of Greece v. Galloway case, Volokh Conspiracy reports. The majority ruled that opening legislative sessions with Christian prayers doesn't violate the First Amendment's ban on the government establishing religious practices. Here's the opinion: http://www.supremecourt.gov/opinions/13pdf/12-696_4f57.pdf

The Fourth Circuit ruled that 'Company Doe' should not have been able to litigate in secret its dispute with the Consumer Product Safety Commission about whether a safety complaint--that a lower-court judge said was "materially inaccurate"--can be posted online, the Wall Street Journal reports. The appellate court held "'that the district court’s sealing order violates the public’s right of access under the First Amendment and that the district court abused its discretion in allowing Company Doe to litigate pseudonymously,"' WSJ further reports.

The Fifth Circuit has rejected a newspaper's appeal against revealing identifying information about people who posted anonymous comments on its website, The National Law Journal's Mike Scarcella reports. The Times-Picayune has to disclose the information to a federal magistrate judge to review confidentially. The issue has arisen in the prosecution of a former New Orleans official. The defense alleges that the two anonymous posters are federal prosecutors. The newspaper's counsel said in court papers the order "implicates the important First Amendment right to engage in anonymous speech," the National Law Journal further reports.

Clay Clavert, a communications professor at the University of Florida in Gainsville, argues in a Huffington Post piece that the U.S. Supreme Court should take up a Pennsylvania case in which rap  lyrics were used as evidence in a criminal conviction. Anthony Elonis was convicted in federal court in Philadelphia for posting rap lyrics containing threats of violence on Facebook.

True threats are not protected by the First Amendment, just like obscenity, child porn and fighting words, Clavert writes. At issue in those Pennsylvania cases is how social media affects the analysis of what constitutes true threats, Calvert further writes: "Will people discount or treat less seriously speech posted on Facebook or a video uploaded to YouTube than they would in-person or in a traditional medium such as newspapers or television? The Court never has considered how the nature of online media affects a true threats analysis."

The U.S. Supreme Court, 5-4, has struck down overall limits on campaign contributions to candidates, political parties and political action committees, the Associated Press reports. Chief Justice John Roberts, writing for the conservative majority, said the overall limits intrude without justification on First Amendment activities. The court preserved a cap on donations to a single candidate, the AP further reports.

Eugene Volokh and Ilya Shapiro, writing in the Wall Street Journal, say that they support same-sex marriage but that a discrimination case against New Mexico photography business owners who don't want to photograph same-sex wedding and commitment ceremonies would make bad law. The New Mexico Human Rights Commission, in a decision upheld by the New Mexico Supreme Court, found that Elane Photography is subject to state's antidiscrimination law and must accommodate the public. "Creators of expression have a First Amendment right to choose which expression they want to create," they argue.

The U.S. Supreme Court will decide whether to take up the case later this month.

After Politico reported that Washington Post reporter Barton Gellman says he's been told his telephone records were obtained by a national security letter, Julian Sanchez posted on Just Security that there at least two ways in which a national security letter would appear to strain the limits of the authority from the only NSL statute allowing for access to telecommunications records.

"First, §2709 may only be used in connection with an 'authorized investigation to protect against international terrorism or clandestine intelligence activities,'" Sanchez writes. "Assuming Bart is not suspected of plotting to blow up any airplanes, it seems probable that we’re dealing here with an investigation of leaks of classified information to press. Yet such leaks—even when they clearly involve a violation of the law—do not obviously satisfy the traditional definition of 'clandestine intelligence activities.'"

Second, Sanchez writes, "a clause added to the NSL provisions by the USA Patriot Act—to compensate for the elimination of the requirement that NSLs target suspected agents of a foreign power—provides that they may be used for an authorized investigation 'provided that such an investigation of a United States person is not conducted solely on the basis of activities protected by the first amendment to the Constitution of the United States.' The sole basis for seeking Gellman’s records would, of course, be his First Amendment–protected newsgathering and reporting activities."

The Third Circuit is considering a constitutional challenge to New Jersey's ban on lawyers putting complimentary quotes from judges' opinions into ads, the New Jersey Law Journal. Only the full text of the opinion with the comments can be presented, the Journal notes.

On one hand, proponents of the ban argue it ensures that the judiciary does not appear to be biased in favor of one side and won't be pulled into  impermisible judicial endorsements. On the other hand, one of the appellate judges said during oral argument that judges' opinions "'can be quoted all over the place,' in law reviews, symposia and in court," so why can't a judge's comment about an attorney in an opinion be used in attorney advertising, the Journal further reports.

Brennan Center for Justice's Andrew Cohen wrote in an opinion piece that "not a single national news organization has filed a single motion recently seeking to dissolve or at least diminish the great cloud of secrecy that has sprung up over the past few months over lethal injections in America." But several media organizations went to court to exercise their First Amendment rights to access the police videos of the arrest of Justin Bieber, he wrote.

There should be media efforts to gain information about lethal injections, especially as states are passing laws to restrict information about their death-penalty procedures, Cohen says: "In Georgia, for example, lawmakers last summer passed a secrecy law so broad that it precludes even the state’s own judiciary from having access to information about lethal injection drugs. It was immediately challenged by a death row inmate named Warren Lee Hill—who promptly got a trial judge to enjoin its enforcement—but no media organization that was asked to get involved in the litigation (and some were) chose to do so."

Cohen concludes that First Amendment rights are never more vital "than when the goverment seeks to execute someone in the name of the state--and seeks to do so in darkness."