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Bristow challenged the law as violating the First Amendment right of access to court records; the court concluded that he had standing to do so, but concluded that he was unlikely to succeed on the merits:

To determine whether the First Amendment guarantees a qualified right of access to a particular category of court records, courts apply the "experience and logic" test. In applying the "experience and logic" test, courts assess (i) whether the category of documents at issue has "historically been open to the press and the general public" and (ii) whether public access to those records "plays a significant positive role in the functioning of the particular process in question." A qualified right of access attaches where both prongs are met. "Under a qualified right, sealing is appropriate if it is 'essential to preserve higher values' and is 'narrowly tailored' to serve such ends."

Bristow asserts that the "experience and logic" test is satisfied because "[f]iled divorce complaints in the State historically have been accessible to the general public as a matter of routine prior to October 1, 2022," when the statute went into effect. The State does not disagree.

Although as a general matter divorce complaints may have been accessible to the public prior to Mich. Comp. L. 552.6a's enactment, a wider historical perspective demonstrates that divorce proceedings have traditionally been shielded in some measure from public view. Defendants refer to cases evidencing historical restrictions on access to divorce proceedings to protect the privacy of the parties involved. See Nixon v. Warner Communications, Inc. (1978) ("[T]he common-law right [to inspect and copy judicial records] has bowed before the power of a court to insure that its records are not 'used to gratify private spite or promote public scandal' through the publication of 'the painful and sometimes disgusting details of a divorce case.'") (quoting In re Caswell (R.I. 1893) (holding that a court clerk was not required to furnish a copy of a divorce case to a journalist)); Katz v. Katz (Pa. Super. Ct. 1986) (holding that "divorce hearings are the type of proceedings which courts may close to protect the rights of the parties"). These authorities demonstrate the historical acceptance of restrictions on access to divorce complaints to protect significant interests, such as the privacy of the individuals involved.

The State asserts that "[b]ased on the established case law, public access in divorce cases does not play a significant role in the functioning of the family court." The Court agrees that public access to a copy of a divorce complaint provides little benefit to the proper administration of divorce proceedings.

As an initial matter, the public has little to glean from a divorce complaint itself. Michigan's no-fault divorce regime, by definition, identifies no wrongdoing by the individuals involved. Nor does a divorce complaint reveal information about the functioning of courts or government agencies or the alleged violations of private or public rights. Rather, divorce complaints merely mark the initiation of a legal process between private individuals. Further, because Michigan law permits the unsealing of a divorce complaint after service on the defendant, the public is able to access the complaint during the pendency of the proceedings, and therefore, retains the ability to monitor the proceedings for fairness. See Detroit Free Press ("[P]ublic access acts as a check by assuring us that proceedings are conducted fairly and properly.").

Importantly, any possible benefit the public might receive were it allowed access to a divorce complaint during the short time between its filing and service on the defendant is heavily outweighed by the benefit of protecting divorce plaintiffs from the threat of further abuse. As the State points out, sealing a divorce complaint between the time of its filing and service provides plaintiffs time to find safety while they are subject to a heightened risk of abuse. The statute thus plays a positive role in the functioning of the divorce proceeding by protecting those who choose to utilize it.

Bristow fails to identify how public access to divorce complaints before they are served plays a significantly positive role in such proceedings. Instead, Bristow largely frames his argument in terms of how the restriction impacts him or his clients. Specifically, Bristow asserts that he is unable to obtain copies of divorce complaints from the Macomb County Clerk's office unless he has entered his appearance on behalf of a client. However, as Bristow acknowledges, he can still obtain a copy of the complaint by filing his appearance in the case. And his clients can do the same by visiting the clerk's office in person. On balance, Bristow's interests, while impacted, are not substantially impeded.

Furthermore, those interests have little, if any, to do with the concern of the "logic" prong, i.e., the impact of a restriction to public access on the functioning of a government process.

The cases upon which Bristow relies do not counsel otherwise. In Shaefer and Planet III, news service organizations sought access to all newly filed nonconfidential civil complaints that they deemed newsworthy. In granting access to the complaints, both courts emphasized the beneficial impact of the public's ability to understand the facts of a civil case so that it could monitor and serve as a check on the proceedings.

By contrast, here, under Michigan's no-fault divorce regime, divorce complaints do not contain detailed factual allegations about the subject matter of the complaint. Coupled with the intensely private nature of the proceedings, such a complaint does not provide the public with the sort of "crucial" information for which access is an important check on the proceedings.

The Court concludes that Mich. Comp. L. 552.6a(1)'s temporary restriction on the public's access to divorce complaints is both (i) supported by historical example and (ii) plays a significant positive role in the functioning of the divorce process because of the protection it provides to divorce plaintiffs at risk of abuse. Accordingly, the Court concludes that Bristow is unlikely to succeed in his contention that there is a First Amendment qualified right of access to divorce complaints before the filing of a proof of service.

Even assuming that Bristow could establish that a qualified First Amendment right attaches under the "experience and logic" test, the Court finds it likely that Mich. Comp. L. 552.6a(1) is constitutionally appropriate because it is narrowly tailored to "preserve the higher value[ ]" of protecting divorce plaintiffs from the heightened risk of violence or abuse. The State cites several tragic incidents of domestic violence highlighting the danger posed to victims of abuse shortly after leaving their abusers. In addition to these individual tragedies, the State points to studies finding that the most dangerous time period for domestic violence victims is shortly after they file for divorce.

Bristow further maintains that the statute is overbroad because it does not provide for a case-by-case determination of whether the complaint should be made nonpublic. But a holding that the State must compel abused plaintiffs seeking to end their marriages to publicly accuse their abusive spouses of misconduct might well tragically ignite an already flammable domestic relationship. Such a requirement would likely deter plaintiffs from making such accusations out of fear of retribution from the defendant. Put simply, the case-by-case approach suggested by Bristow is no answer for the type of harm that the State intends to prevent.

Bristow points to In re Marriage of Burkle, in which a California court rejected an argument that "the same utilitarian values" that support the presumptive openness of criminal and civil trials "somehow lose their potency in the context of divorce proceedings." In re Marriage of Burkle (Cal. Ct. App. 2006) (punctuation modified).

Burkle is very different from the instant case. The statute at issue in that case broadly permitted the sealing of any divorce pleading listing the parties' financial assets and did not permit the unsealing of such records absent good cause. Unlike the restriction in Burkle, Mich. Comp. L. 552.6a(1) only temporarily renders divorce complaints non-public until they are served on the defendant. Moreover, while the statute in Burkle applied to any divorce pleading that divulged the parties' financial assets, Mich. Comp. L. 552.6a(1) narrowly applies only to divorce complaints; it does not mandate sealing any other filing in the divorce proceeding.

The Court agrees with the State that Mich. Comp. L. 552.6a(1) is narrowly tailored to preserve the higher value of protecting divorce plaintiffs subject to domestic violence or abuse. As the State points out, the statute applies only to divorce complaints. Under the statute, both defendants and their attorneys of record may obtain a copy of the complaint before the filing of a proof of service. Moreover, the restriction on the public applies only until the proof of service is filed. Mich. Comp. L. 552.6a(1). Thus, the statute does not prejudice defendants or their attorneys in divorce proceedings. At bottom, the statute applies narrowly to allow divorce plaintiffs a temporary period of time to make arrangements to protect themselves from potential abuse.

Congratulations to Frank Krycia, who represents defendant Anthony Forlini (the Macomb County Clerk), and Toni L. Harris, Charles A. Cavanagh & Kathleen A. Halloran, who represent the Michigan Attorney General.

See original here:
No First Amendment Problem with Temporarily Sealing Divorce Complaints Until Proof of Service Is Filed - Reason

The parents felt that their concerns over race relations in the school district were going unheard and turned to social media to post hundreds of repetitive comments on the school board members Facebook and Twitter pages. The two school board members eventually blocked the parents for spamming their accounts.

In another case, Lindke v. Freed, the city manager of Port Huron, Mich., blocked a resident from his Facebook page who was critical of the citys Covid-19 restrictions.

The U.S. Court of Appeals for the Ninth Circuit ruled that the parents rights were violated in the California case, while the Sixth Circuit ruled in favor of the Michigan official.

The 2018 ruling found that Trump and one of his aides cannot point to the presidents own First Amendment interests as justification for blocking the individuals an argument his legal team had made. But in 2021, the Supreme Court threw away that ruling.

Read this article:
Supreme Court to hear First Amendment cases regarding public ... - POLITICO

California law provides,

(a) The driver of a motor vehicle when reasonably necessary to insure safe operation shall give audible warning with his horn.

(b) The horn shall not otherwise be used, except as a theft alarm system.

The Ninth Circuit upheld this law earlier this month, against a challenge brought by a driver who wanted to honk her horn as an expression of support for political process. The court, in Porter v. Martinez (opinion by Judge Michelle Friedland, joined by District Judge Edward Korman, with a dissent by Judge Marsha Berzon), generally reasoned that the law was a content-neutral restriction on expression, and is narrowly tailored to the substantial government interest in traffic safety:

There is nothing novel about Section 27001's traffic-safety justificationin fact, it seems the California legislature had traffic safety in mind when it first enacted a version of Section 27001 in 1913. That early version of the law prohibited honking "for any purpose except as a warning of danger." . The traffic-safety justification for restricting the use of the horn can also be seen in the vehicle codes of at least forty other states, indicating a near-nationwide consensus on the need for such laws. This long history and consensus, coupled with the common-sense inference that the horn's usefulness as a warning tool will decrease the more drivers use it for any other function, support the State's asserted interest in traffic safety.

There's now a petition for en banc rehearing, filed by Porter's lawyer, David Loy of the First Amendment Coalition (a group that I've often represented in Amicus Brief Clinic cases); here's the Introduction:

As drivers commonly do without inci1dent, Porter beeped her horn to support a protest. After being cited for doing so, she brought this First Amendment action. Over Judge Berzon's dissent, the panel majority upheld a ban on expression in a public forum without a single fact showing the expression causes any risk of harm. The majority relied on fact-free conjecture by an "expert" and disregarded facts showing political horn use causes no hazard.

The First Amendment requires the government to prove hard facts before restricting speech. Rule 702 requires a foundation that expert opinion is reliable. By endorsing censorship based on conjecture and admitting speculative opinions from "experience" with no showing of reliability, the majority decision conflicts with the Supreme Court, this Court, and multiple other circuits. It confuses the law, threatens freedom of speech, and opens the door to unreliable opinions whenever a purported "expert" asserts "experience," from product liability actions to personal injury cases to prosecution for numerous offenses. Rehearing en banc is warranted to harmonize this Court's precedent on these vital issues.

An interesting issue; we'll see soon whether the Ninth Circuit agrees to hear the case en banc.

See the article here:
Horn-Honking and the First Amendment - Reason

Last week, the Supreme Court heard a case about a Colorado man, Billy Ray Counterman, who was sentenced to over four years in prison for stalking due to threatening Facebook messages that he sent to a singer named C.W. Counterman argued that the charges violated his speech rights and that his messages were not true threats, which is a kind of speech not protected under the First Amendment. The issue in the case is whether or not his messages actually constituted under true threats (or if conduct like stalking should be distinguished); and if so, how should courts determine what a true threat is? In this episode, we dive into the facts and issues in theCounterman v. Colorado case, the history of true threats doctrine under the First Amendment, and recap the oral arguments, including whether the justices might decide that true threats should be determined by an objective test, such as if a reasonable person would regard the statement as a threat of violence; or whether they might find that it depends on the speakers specific intent.Genevieve Lakierof the University of Chicago andGabe Waltersof FIRE join hostJeffrey Rosento discuss.

Please subscribe toWe the PeopleandLive at the National Constitution CenteronApple Podcasts,Stitcher,or your favorite podcast app.

Todays episode was produced by Lana Ulrich, Bill Pollock, and Sam Desai. It was engineered by Greg Scheckler. Research was provided by Sam Desai.

Participants

Genevieve Lakieris a professor of law and Herbert and Marjorie Fried Teaching Scholar at the University of Chicago Law School, where she teaches and writes about freedom of speech and constitutional law, including the fight over freedom of speech on social media platforms. She coauthored a brief in support of the respondent, the state of Colorado, in theCountermancase.

Gabe Waltersis an attorney at FIREthe Foundation for Individual Rights and Expression. He joined FIRE after nine years with the PETA Foundation, where he litigated freedom of speech and freedom of information cases in federal and state courts across the country. He and FIRE filed a brief in support of the petitioner, Bill Ray Counterman, in theCountermancase.

Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also professor of law at The George Washington University Law School and a contributing editor of The Atlantic.

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What are True Threats Under the First Amendment? - Podcast ... - National Constitution Center

The First Amendment is perhaps the most cherished set of constitutional rights we have as Americans. It covers freedom of speech, press, assembly, association, religion and the ability to petition the government for the redress of grievances. That covers a lot of ground.

This amendment, like all constitutional rights, comes with limitations. Paraphrasing the great Oliver Wendell Holmes, you cant falsely yell fire! in a crowded theater (this may not technically be true, but you get the point). Furthermore, you cant intentionally use speech to incite violence against a person or place. Finally, although the American press has wide latitude to make mistakes in its reporting, it cannot intentionally defame someones reputation without consequences.

So, what does violating the First Amendment cost these days? About $787,500,000 if youre Fox News Corporation.

Thats the amount Fox paid to settle a defamation lawsuit brought by Dominion Voting Systems, which Fox accused of being complicit in the stealing of the 2020 presidential election. It is by far the largest defamation award in the countrys history.

The settlement raised the hackles of people on both the right and left. Right-wingers who managed to pry themselves away from Fox News long enough to read about the settlement are outraged that Rupert Murdoch caved. Those on the left are outraged Dominion didnt take this to trial and hold Foxs feet to the fire on the witness stand.

As a retired lawyer who negotiated dozens of settlements in my day, I can tell you this case had very little to do with the First Amendment and everything to do with business. In the end, Fox cut its losses and Dominion got the biggest windfall it will ever see.

If youre a right-winger who is ticked off that Fox settled, your anger is misplaced. If anything, Fox didnt settle soon enough. Speaking from experience, settling a lawsuit sooner rather than later is generally going to be cheaper. Seeing a case through to trial is time-consuming and expensive. Plus, trying to figure out what a judge or jury will decide is an inexact science at best. In this case, you could argue that Foxs lawyers should have seen the handwriting on the wall and tried to get out of this early before all of the embarrassing discovery became public. Defamation cases are difficult to prove in America especially when the plaintiff is declared a public figure however, this case was about as slam-dunk as you can get for Dominion. Allowing this process to drag on up to the trial date arguably cost Fox hundreds of millions of dollars.

On the other hand, if youre one of those people who are mad Dominion didnt take this to trial and hold Fox accountable for its alleged malfeasance, I have some news for you. Dominion Voting Systems is not in the business of the First Amendment. Its in the voting machine business, which means its in the business of making money. This settlement is worth several times what the private equity firm paid for the entire company. In other words, being the target of a conspiracy theory is the best business decision Dominion ever made.

The whole reason Dominion brought the lawsuit in the first place is three-fold: defend its reputation, deter future actors from defaming its reputation, and money. Holding the press accountable for bad actions has nothing to do with it unless doing so adds a few more zeroes onto the settlement. Plus, theres no guarantee what a jury will award in damages, or what an appellate court will allow. Dominion was seeking $1.6 billion in damages. Even if it got that much, an appeals court could knock that down considerably. Maybe down to $0. Furthermore, the appeals process can take years. With inflation the way it is these days, that award gets less and less valuable by the month. A bird in the hand as they say.

But dont worry. Fox is being sued for defamation by a voting software company called Smartmatic, which Fox also (allegedly) looped into the 2020 presidential election conspiracy theory. Smartmatic is seeking $2.7 billion in damages. Maybe Fox will change course and go to trial on that case, or perhaps Smartmatic will become a trailblazer for First Amendment accountability.

I wouldnt hold my breath.

The First Amendment may be the most valuable constitutional right we have, but its valuable in more ways than one. In the case of Fox News, that value can be measured in dollars, not principles.

Let freedom ring!

Jeremy Gugino was a full-time volunteer as communications director for the Idaho House/Senate Democrats and Reclaim Idaho.

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Opinion: Crazy like a Fox: Buying the First Amendment for $800 million - Idaho State Journal