2017 Annual Florida Bar Convention: The First Amendment and the US Supreme Court

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The Florida Bar Podcast

2017 Annual Florida Bar Convention: The First Amendment and the US Supreme Court

06/26/17

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Intro: Welcome to The Florida Bar Podcast, where we highlight the latest trends in law office and law practice management to help you run your law firm, brought to you by The Florida Bar’s Practice Resource Institute. You are listening to Legal Talk Network.

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Barbara Leach: Hello and welcome to The Florida Bar Podcast, brought to you by The Practice Resource Institute on Legal Talk Network. This is Barbara Leach recording live from the 2017 Annual Florida Bar Convention in Boca Raton, Florida. Thank you for joining us today.

I am here today filling in for Jonathon and Christine, our erstwhile hosts, who are very busy running all around hither and yon at this conference. And I am really fortunate because today joining me I have Tom Julin from Miami, Howard Wasserman from Miami, Dana McElroy from Fort Lauderdale, and Rick Ovelmen, also from Miami. They are here hot on the heels of having just left a CLE that was wildly popular and they are going to talk to us today about the US Supreme Court and the First Amendment.

Gentlemen and lady, what happened in the Supreme Court recently as it relates to the First Amendment?

Tom Julin: Well Barbara, the Supreme Court has become so important, particularly because of the Trump administration’s attack on journalists and journalism, so we focus on what are the newest decisions that are coming out of the Supreme Court and particularly what is going to be the impact of Donald Trump’s new appointee Neil Gorsuch to the Supreme Court.

Barbara Leach: Have we gotten any intel yet?

Tom Julin: Well, the intel is that he is going to follow the letter of the law as it is written. He hasn’t written any First Amendment decisions yet, but he has really focused on statutory interpretation and he has said I am not going to look behind any statute. I am going to just follow exactly what it says. I am going to determine what it says by reading dictionary definitions.

Barbara Leach: I am sorry, did you just say, what Scalia?

Tom Julin: You got that right. He is a Scalia clone. He is filling in for Justice Scalia who died last year and we are all worried about whether he is going to be something that’s the same or different. He is looking a lot the same right now.

Barbara Leach: So you said he hasn’t decided any First Amendment cases, but have there been any significant ones that you all discussed during your CLE that we think we can glean some of this insight from?

Tom Julin: Well, one case that has yet to be decided, we think is going to be decided Monday; it’s the Trinity Lutheran Church case.

Barbara Leach: What’s that one?

Tom Julin: That one is about whether public monies must be spent to support churches when they are asking to participate in programs; this particular case was about resurfacing of a playground. The state said, no, we can’t give state money to church programs of any sort, and we think that maybe Justice Gorsuch is going to be the deciding vote in that case, to say yes, the state has to support that church program.

Barbara Leach: And just for point of clarification, this is state money that we are talking about.

Tom Julin: That’s right.

Barbara Leach: This is the federal government mandating the spending of that.

Tom Julin: That’s exactly right and that’s what’s so alarming about this particular case. The case has been pending for a number of years now and I think, now my other panelists don’t necessarily agree with me, I think the court has been evenly divided 4 to 4 on this issue and they have been waiting to get a new member of the court on board to break the tie. We will see probably on Monday whether that happens.

Barbara Leach: So Tom, you already said that maybe some of the other panelists disagree. Anybody want to jump in with their thoughts on this?

Howard Wasserman: I think with that case in particular, it may well have been 4 to 4, which is why the case got held over from 2016, just before Justice Scalia died and then it was heard in April, but the oral argument did not go well for the state. There were at least a couple of justices, Justice Kagan, Justice Breyer, who looked very — who seemed during oral argument to be very unconvinced by the state’s argument in defensive of its prohibition on funding religious organizations.

Barbara Leach: So Howard, what do you think is going to happen then?

Howard Wasserman: So I mean based on the argument it looks like the program is going to be declared invalid by a 7 to 2 rather than a 5 to 4 vote.

Barbara Leach: 7 to 2, that’s your prediction.

Tom Julin: He is wrong about that. It’s going to be 5 to 4, but these are the kind of things that we debate at this panel.

(00:04:54)

Barbara Leach: See, dear listeners, don’t you wish you had been here to see this panel, but you weren’t, but you have got this podcast, next best thing. Dana or Rick, do you have any thoughts, what camp do you want to weigh in on?

Rick Ovelmen: Well, I am not sure what the vote will be. I think it’s likely to be at least 5:4. I think the problem — the point I would make is the significance of the case. This involved providing parking surface, but the problem with saying that they have to fund it is that schools get all kinds of money from the state, and if you have to give a church this money, does that mean every church school has to get a cut of all public money and at the same time not pay any taxes. It would be millions and millions of dollars around the United States of public money going to church schools.

Barbara Leach: Rick, is this the proverbial slippery slope then? Is that what you are thinking?

Rick Ovelmen: I think it might be the razorblade slope.

Barbara Leach: Ouch, even worse. Dana, do you have any thoughts?

Dana McElroy: I am going to go with what Tom said. I wasn’t actually on the panel, but listening to it was fascinating and my experience is that he is usually right.

Barbara Leach: Good to know. We are going to follow Tom. So that was one case that apparently sparked controversy, both on the court and at this panel, anything else, any other great cases out there that we need to hear about?

Tom Julin: Well, I mean one case I think that was particularly interesting involved a sex offender, who was banned from accessing Facebook and other social media after he had already served his full sentence. The court concluded that that violated the First Amendment. That was a unanimous decision in terms of the result.

We had a district judge on our panel who said he had just sentenced someone and banned him from accessing those same kind of Internet sites for life. And he was very adamant that he thought that that would be consistent with the First Amendment, and I was a little surprised to hear our panel say that they thought that that type of harsh sentencing would be upheld even after this very important Supreme Court decision.

Howard Wasserman: We have seen, and just speaking descriptively, we have seen courts imposing punishments for convictions that would outside the realm or outside the confines or context of a conviction would not withstand First Amendment scrutiny, and whether that’s right or wrong is another question, but just as a matter of whether it would likely be upheld, courts have been doing this for years, have been imposing sentences or imposing judgments that placed restrictions on what a convicted person can say or read or access.

We have that in prisons already. What made this law from North Carolina unique was it went so far and it was so disconnected from anything having to do with the crime that this guy was convicted of.

Barbara Leach: So are you saying then that this ruling of the United States Supreme Court should be interpreted very narrowly?

Howard Wasserman: No, I am saying that it dealt with an extreme situation and left open the power, the ability of states to legislate in a narrower way than this. And with the case that the judge was talking about, this was somebody who used the Internet to commit his particular crimes, it was part of a much longer sentence, and the case that the Supreme Court had dealt with earlier, I guess they decided earlier this week involved a guy who — it was a sexual abuse of a minor, but it had nothing to do with computers and the websites from which he was banned had nothing to do with being in a position to engage with or hurt minors. So there was that disconnect that the court was dealing with in sort of an extreme statute.

Now, what room the states have to then work within those confines is up to the states and it’s up to the lower courts.

Barbara Leach: So it will be up to the states and the lower courts to determine whether Facebook is a right or a privilege?

Rick Ovelmen: I think a big part of this was, Judge Middlebrooks’ case involved a sex offender who had used the Internet repeatedly with many women, many young women, blackmailed them into doing various sexual things and providing sexual photographs over a period of time; some of the victims were very distraught. One apparently attempted suicide.

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And he sends the guy to 30 years because of the multiple crimes and prohibited the use of computers during that time, but also for the rest of his life, but it was a 30-year sentence.

In the case before the Supreme Court, it was a 21-year-old college kid who had sex or some sex with a 13-year-old girl, one time or one incident, and I am not saying that was good, but it —

Tom Julin: Didn’t use the Internet.

Rick Ovelmen: Right, didn’t use the Internet. He was probably intoxicated or who knows.

Howard Wasserman: But I think we are going to see some appeals from cases like Judge Middlebrooks now in light of this decision and judges are going to have to be very cautious about telling any convicted individuals that they cannot use the Internet, cannot use Facebook and so forth. It’s a big, big win for social media when you can say judges can’t keep people off of it.

Tom Julin: And I think that’s a good — and I think we will speak not descriptively, but that’s a good thing. I mean there are — we can impose punishments without drifting too far into the right of someone’s ability to still exercise certain fundamental rights that don’t have anything to do with their crimes.

Dana McElroy: I just thought as well that Judge Middlebrooks, his commentary on today’s panel and the sentence that he imposed is sort of typical, even for someone that understands First Amendment protections, courts grappling with this idea that the Internet or the broadened communication, that people need protection from that. And that is something that we see everyday litigating, where courts are more and more in my view tightening up and crossing the line because they feel like people need those protections because the Internet is such a vast space and can be so misused in a number of ways, and so I think that the battles are getting harder.

Barbara Leach: So the courts are being a little bit more paternalistic in that fashion.

Dana McElroy: Definitely, in my experience.

Barbara Leach: I love that you just brought up Dana that when you are litigating these issues, and we jumped right in because the subject matter is so fascinating, but can we just take a moment, you guys share with me what brought you either to participate in this panel or to attend it, like what’s your dog in this hunt.

Tom Julin: Well, I have been doing this for 18 years. Most of the practice that I have is in the First Amendment space and so I have learned so much doing this panel. We look at every decision that the Supreme Court has decided in the prior year.

Barbara Leach: That’s a lot of reading.

Tom Julin: It is a lot of reading, but this year there were just four cases that they have got; usually, they have got six to seven cases and it gives you a different sort of view when you look at it on a year-by-year basis and you say, what is the Supreme Court up to this year, it gives you some real keen insights into how you are going to litigate your next case.

Barbara Leach: So what does that mean though Tom in terms of what is your practice, what do you do, educate us?

Tom Julin: Well, the First Amendment goes into so many different spaces. It’s representation of newspapers and television companies, motion picture companies, Internet companies, now every company now is dealing with data. They all have it. They are all doing targeted marketing. And so when you have regulation of targeted marketing, it raises questions about, does that violate the First Amendment?

One of the big cases this year involved trademarks and whether you could register racially disparaging trademarks. The case involved a rock band called The Slants. So you see, the First Amendment, it just goes into lots of different areas, people don’t realize how broad it is in its application.

Barbara Leach: I am going to get back to The Slants in a moment, but Howard, what’s your practice?

Howard Wasserman: I teach at FIU College of Law actually in Miami, and one of the areas I write about is the First Amendment. I think I was brought in as one of the academics on the panel probably about seven or eight years ago at this point.

Barbara Leach: So at the very least, you and Tom have been doing this together for seven or eight years.

Howard Wasserman: Yeah.

Barbara Leach: That’s awesome. Dana, what’s your First Amendment practice, what’s that?

Dana McElroy: Well, I primarily represent newspapers and television stations and so a little bit more of a traditional First Amendment practice, although it does bleed over into intellectual property. I have been on the Media & Communications Law Committee for the last 25, 26 years. That’s the Committee that sponsors the panel and it’s just an excellent panel each and every year to understand what the current developments in First Amendment law are, although as Tom pointed out, we haven’t seen a pure First Amendment case, but all of these ideas are important even for traditional media practice for journalists.

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Rick Ovelmen: Well, I founded this panel more than 30 years ago and on it continuously for 30 years.

Barbara Leach: Okay. This is audio, not visual, but I wish you could see Rick, who doesn’t look like he is been doing this for 30 years and my jaw dropping when he said that, but I guess First Amendment keeps you young, keep talking.

Rick Ovelmen: I look 90 years old. I have written more than two dozen briefs in the US Supreme Court on First Amendment cases. This past year we were active in the Guns versus Docs case, which we talked about on the panel.

Barbara Leach: Tell us about that.

Rick Ovelmen: Well, that was a statute passed by Florida that said doctors cannot discuss gun ownership with their patients. And I wrote four briefs over the course of years for The American Bar Association. Tom represented a bunch of different, what, doctors primarily?

Tom Julin: Yeah, doctors, I represent doctors, the ACLU.

Rick Ovelmen: Judge Jordan ended up writing on the panel, wrote the en banc decision for ten judges in a 10 to 1 case, and what they held was that prohibiting doctors from talking to patients about guns violates the First Amendment, although it’s unclear exactly why, but violated what they call heightened scrutiny, and the panel was discussing that opinion. It’s by the way 90 pages of reading if you are interested.

Barbara Leach: I am good.

Rick Ovelmen: And Tom and I also both wrote briefs and it was really Tom’s case, in a case called Sorrell, US Supreme Court case that a lot of this is all based on. Sorrell involved a prohibition on marketers for pharmaceutical companies contacting doctors to find out what drugs they were prescribing, whether they were prescribing prescription drugs that are branded or generic. And the state didn’t want them to be doing that because they wanted doctors to use generic drugs because they are cheaper. And the court held that that was speech and it was protected and they invalidated the law. There were, what, three states really that had those laws.

Tom Julin: Yeah, that case was in 2011. It’s now been cited in more than 1,200 cases, and these are cases that are all trying to use the First Amendment to attack statutes and regulations. It’s become a real tool for deregulation.

Barbara Leach: Wow. Well, I feel like we could keep this up for hours and hours, but instead, we are going to stop here and we are going to just tantalize listeners and encourage them to attend next year’s Annual Convention, where we are going to have the next round of the First Amendment rulings in the Supreme Court analysis.

This has been another edition of The Florida Bar Podcast, brought to you by The Practice Resource Institute on Legal Talk Network. I want to thank our guests for joining us. If you liked what you heard today, please find and rate us on iTunes. I am Barbara Leach, and until next time, thanks for listening.

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