Free Speech Arguments Institute for Free Speech

U.S. v. Sittenfeld, argued before Judges John K. Bush, John B. Nalbandian, Eric E. Murphy in the U.S. Court of Appeals for the Sixth Circuit on May 9, 2024

Statement of the Issues, from the Appellant’s Opening Brief:

1. Whether objectively ambiguous evidence can prove an “explicit” quid pro quo, and whether the concededly ambiguous evidence here sufficed to do so.

2. Whether the Government constructively amended the indictment by relying on a “bribe” different from the one specified in the indictment’s “to wit” clause.

Introduction to the case, from the Appellant’s Opening Brief:

Politicians cannot sell their official powers—not for bags of cash, not for Rolexes or luxury travel, and not even for campaign contributions. But identifying a campaign contribution as a bribe is uniquely fraught, because such contributions are always based on expectations of what the candidate will do in office. Candidates, likewise, know their policies, promises, and pledges will affect their ability to raise funds. All that is not only lawful; it is constitutionally protected. The result is an incredibly fine line: Donating or soliciting based on policy commitments is First Amendment activity, while donating or soliciting in exchange for policy commitments threatens a prison sentence. Articulating that distinction is hard enough; distinguishing the two in practice is even harder. That, in turn, casts a pall of prosecution over our entire political system and deprives officials and citizens alike of fair notice about what conduct is criminal. 

 Enter the Supreme Court. In McCormick v. United States, 500 U.S. 257 (1991), the Court addressed that problem by holding that the Government must hurdle a distinctly high evidentiary bar when it premises a bribery charge on a campaign donation …. [I]n the context of campaign contributions, the Government must show the quid pro quo was “explicit”— an unambiguous corrupt bargain. Anything less, the Court warned, would leave every campaign donation the fodder of a bribery charge, and every official at the mercy of a lay jury asked to infer corruption from money in politics…. 

 Alexander “P.G.” Sittenfeld was a rising star on Cincinnati’s City Council, and favorite to become the next mayor…. The Government engineered a sting to see if he would accept a campaign donation in exchange for supporting a local development project…. Yet despite that choreography, Sittenfeld never bit…. 

 The jury acquitted Sittenfeld on most counts, but (inconsistently) convicted on two. Even the district court acknowledged the Government’s evidence was at most “ambiguous,” and could be easily seen as ordinary politics. But the court reasoned that the jury was free to string together some vague phrases and pull an “explicit” exchange out of a hat. Every other court to address this issue, however, has required clear and unambiguous proof of corruption; none has upheld a conviction on a record so thin and ambivalent. Indeed, if this evidence suffices, McCormick has no meaning; prosecutors would be free to conjure a bribery charge against every politician, ushering in a First Amendment Ice Age. 

 The Government’s failure to satisfy McCormick is the most fundamental legal error. But at minimum this Court should order a new trial, because the Government constructively amended the indictment…. Under this Court’s precedent, that shift compels a new trial. 

Resources:


CourtListener case page for U.S. v. Sittenfeld
Institute for Free Speech amicus brief in support of defendant-appellant.

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Diei v. Boyd, argued before Judges Joan L. Larsen, Chad A. Readler, and Stephanie Dawkins Davis in the U.S. Court of Appeals for the Sixth Circuit on May 2, 2024

Statement of the Issues, from the Appellant’s Opening Brief:

1. The First Amendment bars public university officials from punishing students for their protected speech under the guise of professionalism policies. Defendants investigated and voted to expel Plaintiff Kimberly Diei under the College of Pharmacy’s professionalism policy because of her pseudonymous posts about social and cultural issues on her personal social media accounts. Did the district court err by concluding that Defendants did not violate the First Amendment?

2. Viewpoint discrimination is a long-settled and egregious First Amendment violation. Defendants admit they punished Diei because they disapproved of the “sexual” and “vulgar” views she expressed on her personal social media. Did the district court err by granting Defendants qualified immunity for retaliating against Diei’s protected speech?

3. Claims for retrospective declaratory relief continue to present a live controversy so long as they are tied to a claim for damages. Diei’s claims for retrospective declaratory relief are tied to her damages claims because they arise out of Defendants’ same course of unconstitutional conduct. Did the district court err by concluding that Diei’s claims for declaratory relief are moot?

Resources:


CourtListener case page for Diei v. Boyd

The Institute for Free Speech promotes and defends the political speech rights to freely speak, assemble, publish, and petition the government guaranteed by the First Amendment. Learn more on our website: www.ifs.org

Spectrum WT v. Wendler, argued before the U.S. Court of Appeals for the Fifth Circuit on April 29, 2024. The argument was heard by Judges James L. Dennis, Leslie H. Southwick and James C. Ho.

Excerpted from the Brief for Plaintiffs-Appellants:

Spectrum WT is a longstanding, recognized student organization at West Texas A&M . . . [I]n November 2022, Spectrum WT started planning a March 31, 2023, charity drag show at Legacy Hall [a campus venue].

The students planned their event to be anything but risqué. They instructed performers to avoid profane music or “lewd” conduct. And they described the planned performances as appropriate for those over 13 years old.

Eleven days before the show, Defendant and Vice President for Student Affairs Christopher Thomas informed Spectrum WT that President Wendler was canceling the drag show.

In a public edict posted online and emailed to the campus community, President Wendler declared that “West Texas A&M will not host a drag show on campus” because a “harmless drag show” could never be “possible.” Wendler’s 734-word edict focused on the “ideology” underlying drag shows. Drag, he wrote, is “a performance exaggerating aspects of womanhood (sexuality, femininity, gender)” that, through “slapstick,” “stereotype women in cartoon-like extremes for the amusement of others.”

Statement of Issues (excerpted from the Brief for Plaintiffs-Appellants):


Plaintiffs wish to perform a PG-13 charity drag show at West Texas A&M University, which the University’s president agreed is “performance” and “artistic expression.” Did the district court err in concluding that Plaintiffs’ drag show lacks First Amendment protection?
Before anyone took the stage, West Texas A&M’s president banned drag shows in campus forums open to student expression because, in his view, drag shows promote values that clash with his own. Did the district court err in not enjoining this viewpoint-based prior restraint on protected expression?

Resources:


Brief for Plaintiffs-Appellants Spectrum WT, et al.
Brief for Defendant-Appellee Walter Wendler (This is the only brief that discusses Christian Legal Society v. Martinez, but does so extensively.)
Brief for Defendant-Appellees John Sharp and Christopher Thomas
Appellants' Reply to Brief of Appellees John Sharp and Christopher Thomas
Overview of Christian Legal Society v. Martinez (MTSU Free Speech Center)
Opinion in Christian Legal Society v. Martinez

Time Stamps:

(0:00:00) Argument by J.T. Morris, counsel of record for plaintiffs
(00:02:26) Questions; question by Judge Ho about comparing and reconciling CLS v. Martinez with the present case
(00:19:10) Argument by Joseph N. Mazzara, Texas Attorney General's Office 
(00:19:46) Questions
(00:23:40) Mazzara begins to address CLS v. Martinez
(00:32:10) Argument by Allison Marie Collins, Texas Attorney General's Office
(00:33:01) Questions
(00:37:20) Rebuttal by J.T. Morris
(00:39:50) Morris revisits CLS v. Martinez; additional questions regarding CLS compared to the present case



The Institute for Free Speech promotes and defends the political speech rights to freely speak, assemble, publish, and petition the government guaranteed by the First Amendment. Learn more on our website: www.ifs.org

Joseph W. Fischer  v. United States, argued before the Supreme Court of the United States on April 16, 2024

From the Petition for a Writ of Certiorari:

Petitioner Joseph W. Fischer . . . attended the Stop the Steal rally on January 6. Unlike many of the other attendees, Mr. Fischer did not subsequently march with the crowd to the Capitol. . . . But after learning of the swelling demonstration, Mr. Fischer and his companion drove back to Washington, D.C. . . . Mr. Fischer was not part of the mob that forced the electoral certification to stop; he arrived at the Capitol grounds well after Congress recessed.***[T]he government also charged [Mr. Fischer with] a violation of Section 1512(c) (Count 3), which prohibits evidence-impairment in connection with, among other things, “a proceeding before the Congress.”***The D.C. Circuit's interpretation of the anti-shredding provisions of the Corporate Fraud and Accountability Act of 2002, 18 U.S.C. § 1512(c)(2), presents an important question of federal law affecting hundreds of prosecutions arising from January 6, including the prosecution of former President Donald Trump. . . . The D.C. Circuit's opinion conflicts with this Court's precedent, diverges from the construction of Section 1512(c) by other courts of appeal, and results—as Judge Katsas observed—in an “implausibly broad” provision that is unconstitutional in many applications.

Question Presented:

Did the D.C. Circuit err in construing 18 U.S.C. § 1512(c) (“Witness, Victim, or Informant Tampering"), which prohibits obstruction of congressional inquiries and investigations, to include acts unrelated to investigations and evidence?

Resources:


Fischer v. U.S. docket
U.S. v. Fischer opinion (Court of Appeals for the D.C. Circuit)






Time Stamps:

(00:00:00) Argument by Jeffrey T. Green, counsel of record for Petitioner(00:34:44) Argument by Elizabeth B. Prelogar, Solicitor General of the United States
(00:48:40) Justice Alito line of questioning about "mostly peaceful" protest hypotheticals and the outer reaches of this statute, which leads to a discussion touching on free speech issues.
(01:36:35) Rebuttal by Jeffrey T. Green


The Institute for Free Speech promotes and defends the political speech rights to freely speak, assemble, publish, and petition the government guaranteed by the First Amendment. Learn more on our website: www.ifs.org

United States v. Douglass Mackey, argued before the United States Court of Appeals for the Second Circuit on April 5, 2024.

Panel: Debra Ann Livingston, Chief Judge, and Judges Reena Raggi and Beth Robinson.

Most of this argument does not address the First Amendment issues present in this case, but those issues do get discussed and could impact the ruling.

From the Opening Brief of Defendant-Appellant Douglass Mackey:

For years, Congress has debated, as a matter of policy, whether to criminalize the spread of political or electoral misinformation. And scholars have debated, as a matter of constitutional law, whether such a prohibition would withstand scrutiny under the First Amendment. Those are hard questions. This case asks whether Congress already criminalized this conduct (and much more) 150 years ago….

The statute at issue, 18 U.S.C. § 241, forbids conspiracies “to injure, oppress, threaten, or intimidate” anyone in the “free exercise or enjoyment” of any federal right. Part of the Enforcement Act of 1870, that statute has always been understood in the voting context to prohibit coercion (like assaulting or threatening voters) and ballot-box fraud (like shredding or stuffing ballots). Until this case, it was never deployed against mere deceptive speech, even though misinformation has been endemic in our politics since the Founding. Reading § 241 to sweep in speech that deceives voters would, atop many other problems, render it grotesquely overbroad under the First Amendment—exactly how the Supreme Court recently cautioned not to construe criminal statutes….

Mackey was convicted of one count under [18 U.S.C.] § 241 for posting on Twitter, in the days preceding the 2016 presidential election, two "meme" images falsely suggesting that supporters of Hillary Clinton could vote by text message. Mackey testified that he posted the memes to garner media attention, and there is no evidence that anyone failed to cast a proper vote because of his tweets. But a deadlocked jury eventually convicted, and now—for the first time in U.S. history—a citizen has been sentenced to prison for spreading political misinformation.

***

STATEMENT OF ISSUES


Whether a private citizen commits a “clearly established” violation of 18 U.S.C. § 241 by spreading misinformation about how to vote.
Whether criminal venue for a conspiracy offense can be premised solely on the travel of “internet data” across a district’s waters or airspace.
Whether the evidence was sufficient to allow a jury to find the existence of a criminal conspiracy beyond a reasonable doubt.

Resources:


Second Circuit court calendar
Opening Brief of Defendant-Appellant Douglass Mackey
Brief for the United States
Reply Brief of Defendant-Appellant Douglass Mackey

The Institute for Free Speech promotes and defends the political speech rights to freely speak, assemble, publish, and petition the government guaranteed by the First Amendment. Learn more on our website: www.ifs.org

Leah Gilliam v. David Gerregano, Commissioner of the Tennessee Department of Revenue, et al., argued before the Supreme Court of Tennessee on April 3, 2024.

From the Court of Appeals Opinion:

Citizens of Tennessee may apply to the Tennessee Department of Revenue (the “Department”) for license plates featuring unique, personalized messages. Tennessee Code Annotated section 55-4-210(d)(2) provides that “[t]he commissioner shall refuse to issue any combination of letters, numbers or positions that may carry connotations offensive to good taste and decency or that are misleading.”

After her personalized plate featuring the message “69PWNDU” was revoked by the Department, Leah Gilliam (“Plaintiff”) filed suit against David Gerregano (the “Commissioner”), commissioner of the Department, as well as the then-Attorney General and Reporter. Plaintiff alleged various constitutional violations including violations of her First Amendment right to Free Speech.

Question Presented:

Are personalized plates personal speech—as Ms. Gilliam maintains and as nearly every other court to consider that question has held—or are personalized plates the Government’s speech, as the Chancery Court Panel anomalously held below?

Resources:


Court of Appeals decision in Gilliam v. Gerregano
Gilliam v. Gerregano page at the Tennessee courts website
Reason article with background on the case
Proposed Amicus Curiae Brief of Simon Tam
Amicus Curiae Brief of The Foundation for Individual Rights and Expression in Support of Plaintiff-Appellee, Leah Gilliam
Brief of Amicus Curiae First Amendment Lawyers Association
Reply Brief for Appellants
Brief for Appellants
Brief of Appellee Leah Gilliam



Time Stamps:

(0:00:10) Argument by Matt Rice, Solicitor General of Tennessee

(00:25:32) Argument by Daniel Alexander Horwitz, counsel for Leah Gilliam

(00:55:45) Rebuttal by Matt Rice, Solicitor General of Tennessee



The Institute for Free Speech promotes and defends the political speech rights to freely speak, assemble, publish, and petition the government guaranteed by the First Amendment. Learn more on our website: www.ifs.org