First Amendment Cases and Issues
Sykes v. Bayer Corporation
Sykes v. Bayer -- In the course of bringing a claim in
federal court in Virginia, asserting that a child's autism was
caused by trace amounts of mercury in hemoglobulin made by a
predecessor of Bayer Corporation, the plaintiff's lawyer sent a
subpoena to a blogger based on New Hampshire who had criticized
the theory of the plaintiff's suit, demanding production of all
her communications with anybody about the subject of her blog.
The blogger moved to quash in federal court in New Hampshire,
and in addition to quashing the subpoena, the judge ordered the
plaintiff's lawyer to explain why he should not be sanctioned.
The lawyer's explanation was that he hoped to prove that the
blogger was defaming him and the plaintiff. Public Citizen filed
a response for the blogger, explaining that the lawyer's
opposition to sanctions did not justify his subpoena and, in
fact, showed that sanctions were called for.
Andrew v. Clark
Plaintiff-Appellant Michael Andrew, a veteran commander with
the Baltimore Police Department, wrote a memorandum to the
Police Commissioner expressing serious concerns regarding
whether the police had properly handled an incident that
resulted in the shooting death of an elderly man barricaded in
his apartment. Receiving no response, Andrew contacted a
reporter at The Baltimore Sun and provided him a copy of his
memorandum to bring the incident to light. The Baltimore Sun
then published an article regarding the police shooting, based
on Andrew’s views. Following the article’s publication, the
Baltimore Police Department removed Andrew from his command
position, caused him to lose a stipend, and placed him in a job
with reduced responsibility and authority.
Andrew brought a First Amendment retaliation claim, among
other claims, in a federal district court in Maryland. The court
dismissed his First Amendment claim because it understood the
U.S. Supreme Court in Garcetti v. Ceballos, 547 U.S. 410 (2006),
to rule that a public employee who, because of his employment,
learns of government malfeasance and “goes public” after being
rebuffed or ignored within his workplace, enjoys no
constitutional protection for his speech. Andrew appealed to the
U.S. Court of Appeals for the 4th Circuit. Public Citizen, along
with four other public interest groups, submitted an amicus
brief in the 4th Circuit supporting Andrew and arguing that the
district court misunderstood Garcetti and that its decision must
be reversed and Andrew’s First Amendment claim reinstated.
Harrell v. The Florida Bar
Public Citizen is challenging Florida's rules governing
attorney advertising, arguing that they restrict attorneys'
speech in violation of the First Amendment and Due Process.
Florida's rules are among the strictest in the country,
prohibiting attorneys from using almost all common advertising
techniques, including slogans, jingles, background noises, and
descriptions of the quality of a lawyers services.
Verni v. Lanzaro
Public Citizen moved to intervene and unseal the record in a
high-profile personal injury case in New Jersey. The plaintiff,
a girl who was paralyzed by a drunk driver when she was two
years old, initially won one of the highest personal injury
awards in New Jersey's history. On appeal, however, the verdict
was reversed, and when the case was returned to the trial court
it sealed all future filings in the case, including the court's
own decisions. Public Citizen argued that the public has a First
Amendment and common-law right of access to the case file. On
appeal, the court ordered the records unsealed.
Public Citizen v. Louisiana
First Amendment and Due Process challenge to Louisiana's
amended attorney advertising rules. Public Citizen's complaint
contends that the rules are an unconstitutional restriction of
the right to commercial speech.
Alexander v. Cahill
First Amendment and Due Process challenge to New York's rules
governing attorney advertising. Public Citizen's complaint
contends that the rules allow for arbitrary and discriminatory
enforcement, prohibit both noncommercial and commercial speech
that is protected by the First Amendment, and ultimately harm
consumers by denying them access to information about their
legal rights and available legal services.
Garcetti v. Ceballos
Public Citizen represented Los Angeles County prosecutor
Richard Ceballos in this significant public employee First
Amendment case before the U.S. Supreme Court. The case presented
the question whether a public employee who speaks on a matter of
public concern in the workplace loses his First Amendment
protection against retaliation by his employer for the sole
reason that he communicated his message while performing his
job. The U.S. Court of Appeals for the 9th Circuit ruled in
Ceballos's favor, and the U.S. Supreme Court agreed to hear the
dispute, which was argued in October 2005. The Court announced
in February that the argument will be reheard on March 21, 2006.
Here, Ceballos reported to his supervisors that he believed
that a police officer had falsified an affidavit used to obtain
a search warrant in a criminal matter under the prosecutor's
supervision. His superiors retaliated by taking several adverse
actions against him. His supervisors, the District Attorney, Los
Angeles County, and the U.S. Department of Justice as a friend
of the court urge the Supreme Court to rule that public employee
speech should automatically be excluded from First Amendment
protection if it is communicated as part of the employee's job
duties—regardless of whether the speech addresses a matter of
public concern or disrupts the workplace. Public Citizen argued
on Ceballos's behalf that this drastic curtailment of a
fundamental constitutional protection is contrary to the Supreme
Court's precedents, would stifle or punish speech of critical
importance to the public, and would cause many whistleblowers to
remain silent or to air problems in the media instead of
pursuing internal channels of communication.
Edmonds v. DOJ
Public Citizen filed an amicus brief on behalf of 14 public
interest and 9/11 family groups urging the U.S. Court of Appeals
for the D.C. Circuit to reinstate the case of former FBI
translator Sibel Edmonds, who was fired after reporting to
superiors numerous instances of wrongdoing in her unit.
Edmonds challenged her retaliatory dismissal by filing suit
in federal court, but her case was dismissed when the government
invoked the "state secrets privilege" - a common law evidentiary
privilege that allows the government to withhold information on
the grounds that it could compromise national security. Edmonds
appealed the dismissal of her case.
In the amicus brief, we argue that the government overreached
in claiming that the entire case had to be dismissed and that
the district court erred by failing to scrutinize the basis of
the government's privilege claim to determine whether an
accommodation was possible that would have permitted Edmonds to
prove her case without compromising national security
information. Further, we argue that the timing and breadth of
the government's privilege claim suggests that it was used as a
litigation tactic to deprive Edmonds of her day in court, rather
than to protect legitimate secrets. The privilege was also used
to stop Edmonds from testifying in a case brought by the
families of those killed on Sept. 11, 2001, against Saudi
individuals and others who allegedly financed al Qaeda. Much of
the information that the government claims is secret was
released to Congress and the public before the government
asserted the state secrets privilege.
Project On Government Oversight (POGO) v. Ashcroft
This case challenged the retroactive classification of
information related to whistleblower Sibel Edmonds' allegations
of wrongdoing in an FBI translation unit. Public Citizen,
representing the Project On Government Oversight (POGO), filed
suit against then-Attorney General John Ashcroft and the U.S.
Justice Department (DOJ) for retroactively classifying the
information. The suit alleged that the retroactive
classification was unlawful and violated POGO's First Amendment
right to free speech by imposing a prior restraint on POGO's
ability to communicate important information to the public.
The information at issue was presented by the FBI to the
Senate Judiciary Committee during two unclassified briefings in
2002. The information was referenced in letters from U.S. Sens.
Patrick Leahy (D-Vermont) and Charles Grassley (R-Iowa) to DOJ
officials. The senators' letters were posted on their Web sites
but were removed after the FBI notified the Senate in May 2004
that the information had been retroactively classified.
During a June 2004 Senate Judiciary Committee hearing,
Ashcroft defended the decision to retroactively classify the
information, claiming that its further dissemination could
seriously impair the national security interests of the United
States, even though for more than two years the information was
widely available to the public. Throughout the litigation, POGO
had offered to dismiss the suit if the DOJ stated that POGO
could discuss and disseminate the letters without fear of
prosecution, but the agency refused to do so and instead claimed
that POGO lacked standing to maintain the suit because the
threat of criminal sanctions did not injure POGO. On the eve of
the hearing on the parties' cross motions for summary judgment,
the Justice Department reversed its position and admitted that
the information it had retroactively classified could be
released to the public.
Veneman v. Livestock Marketing Association
This case in the U.S. Supreme Court concerns whether the beef
"checkoff" program, under which all beef producers are required
by federal law to contribute funds to support "generic" beef
advertising, violates the First Amendment. Dissident beef
producers who are outside the mainstream of the beef industry
oppose the law because it compels them to support speech that
they do not agree with. The federal government defends the law
on the theory that the beef advertising is "government speech"
and is not subject to a First Amendment challenge. Public
Citizen has filed an amicus curiae brief supporting the
opponents of the law. The brief argues that the beef advertising
that is funded by the program (specifically, the "Beef, It's
What's for Dinner" campaign) is not genuinely speech of the
federal government, but is simply an industry effort to promote
its product to consumers, and that the First Amendment does not
permit the government to compel dissidents within an industry to
support that kind of advertising.
Crown Pontiac v. Ballock
In this cyberspeech case, Public Citizen defended Thomas
Ballock's right to criticize the Crown Pontiac car dealership.
Mr. Ballock purchased a defective car from Crown and was very
unhappy with Crown's response to his complaints, so he posted a
gripe site on the Internet in which he used Crown's name in the
domain name and text. Mr. Ballock's site clearly stated that it
was not Crown's official website, but rather a site critical of
Crown. Crown sued Mr. Ballock under trademark and cybersquatting
laws, but was eventually forced to drop its lawsuit and pay Mr.
Ballock more than $6000 for the damages he incurred from Crown's
attempt to enjoin his website.
City of Chicago v. Weinberg
The U.S. Court of Appeals for the Seventh Circuit held that a
ban on peddling on the public sidewalks within 1,000 feet of the
United Center, a Chicago sports stadium that is the home of the
Chicago Blackhawks, violated the First Amendment as applied to a
lone bookseller selling a book criticizing the Blackhawks'
owner. This brief opposes the City of Chicago's petition for
certiorari in the Supreme Court and explains why the Seventh
Circuit's decision was correct and why there is no basis for
further review.
Kentucky Lawyer Advertising Regulations
The Kentucky Bar has proposed new regulations that would
sharply limit lawyer advertising by preventing the use of actors
and props in television commercials, barring lawyers from using
testimonials and references to past successes in their ads, and
requiring that any ad that mentions claims for damages include a
lengthy discussion of the "legal requirements" applicable to
those claims. Together, the regulations would prevent lawyers
from effectively using truthful and nonmisleading advertising
techniques, and thus violate the First Amendment. In addition,
their anticompetitive effect raises antitrust concerns. Public
Citizen has submitted comments opposing the proposed rules to
the Kentucky Bar and has sent letters to the U.S. Department of
Justice and the Federal Trade Commission asking that they look
into the antitrust issue.
VA v. Hicks
Respondent Kevin Hicks challenges the City of Richmond's
policy of prohibiting the public from walking on the streets and
sidewalks adjacent to public housing as unconstitutionally
overbroad and vague. Oral argument before the United States
Supreme Court is scheduled for April 30, 2003.
Nike v. Katsky
In Nike v. Kasky, the Supreme Court will address the question
whether Nike's public relations campaign to persuade consumers
that its overseas operations are "labor friendly" is protected
by the First Amendment against a lawsuit alleging that Nike's
statements are false and misleading. Public Citizen has
submitted a friend of the court brief urging the Court to affirm
the California Supreme Court's decision allowing the lawsuit to
go forward. The brief argues that when corporations seek to use
false or misleading statements about social issues to sell their
products, they are just as subject to government regulation or
consumer lawsuits as when they misrepresent more conventional
features of their products such as price or quality.
People ex rel. Ryan v. Telemarketing Associates (U.S.
Supreme Court - January 2003)
This case presents the important question whether state and
local regulators have the authority to pursue a fraud action
against a charity or a professional fundraiser based on a
failure to volunteer to potential donors the charity's
fundraising cost percentage in situations where an official
decides-after-the-fact and without advance warning-that the
charity's fundraising costs were "too high."
Thomas v. Chicago Park District
This amicus brief filed in the Supreme Court argues that the
Chicago Park District's ordinance requiring that anyone seeking
to use amplified sound or to hold a rally that involves fifty or
more persons in a city park must first obtain a permit, imposes
a prior restraint on speech that must be accompanied by the
procedural safeguards imposed in Freedman v. Maryland. These
safeguards are particularly important in contexts that do not
involve a limited public resource (e.g., a city park)—such as
licensing schemes that require charitable organizations to
register and obtain a permit before they may solicit
contributions from residents in a particular locality—because of
the significant opportunities for official abuse, delay, and
censorship based on the content of speech.
Public Citizen v. Pinellas County
This case, filed in May 2001, challenged the
constitutionality of Pinellas County, Florida's charitable
solicitations ordinance, which required charities to register in
the county, pay a filing fee, and comply with burdensome
reporting requirements before they were permitted to solicit
charitable contributions from county residents. The ordinance
also required nonprofit organizations to register with the
county simply because they received an unsolicited contribution
via the Internet. The lawsuit challenged the ordinance on First
Amendment, Commerce Clause, and Fourteenth Amendment Due Process
grounds.
After Public Citizen's lawsuit was filed, Pinellas County
amended its charitable solicitations ordinance to eliminate or
modify several of the most offensive provisions challenged in
the lawsuit. Subsequently, in May 2004, the district court
issued a decision on the parties' motions for summary judgment,
finding in favor of plaintiffs on several of their remaining
challenges.
On February 20, 2007, Pinellas County's Board of County
Commissioners repealed the County's charitable solicitation
registration requirements for persons or organizations
soliciting for charitable purposes.
Lorillard v. Reilly
This case is important because it raises the fundamental
question of whether states may regulate tobacco advertising
strictly. Click here for further description and
brief of amici curiae (3/2001).
Dendrite International v. Does 1 through 14
Company providing and servicing software for the
pharmaceutical industry sued four anonymous posters, two of them
current or former employees, alleging defamation, disclosure of
trade secrets, and breach of employment contract. Public Citizen
filed an amicus brief in support of opposition by two posters to
subpoena to Yahoo! After Court entered order protecting these
two posters, the company appealed denial of subpoena regarding
one of the posters.
Thomas & Betts Corporation v. Does 1 through 50
Circuit City Stores, Inc. v. Steven C. Shane
Northwest Airlines, Inc. v. Teamsters Local 2000, et al.
Servicemaster, et al. v. Virga
Edenfield v. Fane S. Ct. Brief: 1st Amendment Challenge to
Prohibition of In-Person Solicitation of Accountants
Longman, et al., v. Food Lion Inc., et al.: Memorandum of
Non-Party Government Accountability Project in Opposition to
Motion to Compel
Rex v. Ebasco Services, Inc.: Motion for Clarification of
Secretary's Order
Internet Free Speech
The rapid growth of the internet and internet
technologies provides a renewed opportunity for citizens to have
their voices heard on a wide variety of issues, including their
government, the corporations that have an increasing role in
their economic security, and the unions that represent their
labor interests. The internet affords individuals the ability to
exchange ideas on these and other issues with an ever-growing
world community -- an ability that no citizen in any previous
society has had.
Public Citizen has developed a program of
litigation and other forms of advocacy which protects the rights
of these ordinary citizens against those powerful entities who
would seek to curtail or suppress the exchange of ideas and
criticism that is enabled by this new technology.
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