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Yesterday, the 11th Circuit issued its en banc opinions in Wollschlaeger v. Gov. of the State of Florida, AKAthe Docs v. Glocks case. As previously discussed here, here, and here, the case concerns whether Florida can prohibit doctors from asking their patients about their gun ownership or possession unless the question is directly relevant to a patients care. The issue is controversial because many doctors, especially pediatricians, often routinely ask patients (or their parents) questions about potential hazards in the home, be it swimming pools, poisons, or guns.

The primary legal issue before the 11th Circuit was whether the Florida law restricted speech based on its content and the speaker, and if so, what level of scrutiny should be applied to determine if the restriction is unconstitutional. Last year, PLF filed an amicus brief in the case arguing that all content-based speech restrictions should receive strict scrutiny, regardless of whether the speech is made in a professional setting. The second issue in the case (which PLF does not take a position on) concerned the anti-discrimination provision of the law. The Court upheld that provision narrowly: a move that even the doctors were amenable to,as indicated during oral argument.

In the first of its majority opinions*, the Court easily determined that the challenged law restricted speech based on its content and speaker. Next, the Court declined to apply deferential review under the professional speech doctrine. As discussed at length in PLFs brief, the professional speech doctrine is unprincipled and unsupported by a majority of the Supreme Court, so the 11th Circuits rejection of that standard in this case is most welcome. Finally, applying the U.S. Supreme Courts 2011 decision inSorrell v. IMS Health,the Court held that the law could not survive heightened scrutiny, so it declined to decide whether strict scrutiny was warranted. In short, the Court thoroughly dismantled the States justifications for the speech-restricting provisions, generally holding that the State offered insufficient actual evidence to justify restricting the speech of doctors.

There are also some additional things worth mentioning from the two concurring opinions. The first concurrence, written by Judge Wilson, would have applied strict scrutiny to strike down the speech-restricting portions of the law. This is particularly noteworthy because Judge Wilson was on the original panel that wrote three separate opinions before the case was taken en banc. Judge Wilson penned dissents to all three of those opinions, but with his concurrence yesterday he announced for the first time his conclusion that strict scrutiny is appropriate in light of the Supreme Courts 2015 decision in Reed v. Town of Gilbert.Second, the concurrence written by Judge William Pryor and joined by Judge Hull, reiterates that this case does not create a clash between the First and Second Amendments. While Docs v. Glocks is certainly catchy, it never accurately described the legal and constitutional issues presented in the case.

Even though the 11th Circuit did not go on to apply strict scrutiny to content- and speaker-based speech restrictions in a professional context, this case is certainly a strong win for the vindication of the right to free speech protected under the First Amendment. Doctors and speech advocates should certainly celebrate that.

*With an unusual move, the Court issued two majority opinions. I consider the opinion of Judge Jordan to be the primary opinion, though, and in any event Judge Jordans opinion is the one that announces the bulk of the Courts opinion on the First Amendment questions of interest to PLF.

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Major First Amendment victory in Docs v. Glocks case - Pacific Legal Foundation (PLF) (press release) (blog)

Last summer, a Florida federal court reachedsome unusual conclusionsin a lawsuit filed by SEO company e-ventures, which felt Google had overstepped its bounds in delisting a lot of its links. Google defended itself, citing both Section 230 and the First Amendment. The court disagreed with both arguments.

As to Section 230, the court found that Googles delisting efforts werent in good faith. The reason cited was e-ventures claim that the delisting was in bad faith. So much for this seldom-used aspect of Section 230: the Good Samaritan clause which states no third-party company can be found liable for actions it takes to remove content it finds questionable. And so much for viewed in the light most favorable to the non-moving party. Apparently, Googles long history of spam-fighting efforts is nothing compared to an SEO wranglers pained assertions.

The court also said Google had no First Amendment right to handle its search rankings however it saw fit, which is more than a little problematic. While it admitted Googles search rankings were protected speech, its statements about how it handled search engines werent. And, for some reason, the court felt that Googles ads undermined its First Amendment protections because its desire to turn a profit somehow nullified its editorial judgment.

It was a strange decision and one that suggested this court might be considering getting into the business of telling service providers how to run their businesses. It also suggested this court believed the more successful the business was, the fewer rights and protections it had. These dubious conclusions prevented Google from having the case dismissed.

Fortunately, this wasnt the final decision. As Eric Goldman points out, last years denial only delayed the inevitable. After a few more rounds of arguments and legal paperwork, Google has prevailed. But theres not much to celebrate in this decision as the court has (again) decided toroute around Googles Section 230 Good Samaritan defense.

Regarding 230(c)(2), the court says spam can qualify as harassing or objectionable content (cite toe360insightwith a but-see to theSong Ficase). Still, the court says e-ventures brought forward enough circumstantial evidence about Googles motivations to send the case to a trial. By making it so Google cant even win on summary judgment, rulings like this just reinforce how Section 230(c)(2) is a useless safe harbor.

Had it ended there, Google would be still be facing e-ventures claims. But it didnt. The court takes another look at Googles First Amendment claims and finds that the search engine provider does actually have the right to remove spammy links. Beyond that, it finds Google even has the First Amendment right to remove competitors content. From theorder[PDF]:

[T]he First Amendment protects as speech the results produced by an Internet search engine. Zhang v. Baidu.com, Inc., 10 F. Supp. 3d 433, 435 (S.D.N.Y. 2014). A search engine is akin to a publisher, whose judgments about what to publish and what not to publish are absolutely protected by the First Amendment. See Miami Herald Publg Co. v. Tornillo, 418 U.S. 241, 258 (1974) (The choice of material to go into a newspaper . . .whether fair or unfairconstitute[s] the exercise of editorial control and judgment that the First Amendment protects.) The presumption that editorial judgments, no matter the motive, are protected expression is too high a bar for e-ventures to overcome.

And the court walks back its earlier conclusion the one that seemed to find profit-motivated editorial judgment to be unworthy of First Amendment protections.

Googles actions in formulating rankings for its search engine and in determining whether certain websites are contrary to Googles guidelines and thereby subject to removal are the same as decisions by a newspaper editor regarding which content to publish, which article belongs on the front page, and which article is unworthy of publication. The First Amendment protects these decisions, whether they are fair or unfair, or motivated by profit or altruism.

The case is now dismissed with prejudice which bars e-ventures from complaining about Googles delisting efforts in federal court. e-ventures has gone this far already in hopes of seeing its terms-violating content reinstated, so it will likely attempt to appeal this decision. But it really shouldnt. Its unlikely another set of judges will help it clear the First Amendment hurdle. Not only that, but this area of law should be well-settled by now, as Goldman points out:

Of course Google can de-index sites it thinks are spam. Its hard to believe were still litigating that issue in 2017; these issues were explored in suits likeSearchKingandKinderStartfrom over a decade ago.

The plaintiff was given a long leash by the court, which should have tossed last year. Even with the extra time and the court doings its Section 230 circumvention work for it, e-ventures still couldnt prevail.

Court Says Google Has A First Amendment Right To Delist Competitors Spammy Content

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Court Says Google Has A First Amendment Right To Delist Competitor's 'Spammy' Content - Above the Law

As a news guy I have often been called on to cover protests, and they are something I always enjoy going to.

Of course, protests are news, but they are also an expression of free speech, which is the cornerstone of our representative republic and allows me to ply my craft without the worry of some government thug threatening me, which is a tactic that is used against journalists around the globe daily.

Journalists are supposed to set aside their biases when covering all events, even protests that may have speech and themes they find onerous in the extreme. Thats very hard to do sometimes but must be done to provide acurate coverage of an event.

I once was assigned to cover a Ku Klux Klan rally, where the free speech was both profane and ignorant. During that event I was taking pictures and drifted into the area where protesters were hurling insults, bottles and rotten fruit across a barricade at the Klan members. As I snapped a photo an overzealous police officer clobbered me with a riot stick.

As I groggily found my feet I asked him why he had struck a member of the press. He yelled for me to move on and expressed disdain for my profession. I didnt move on, I went back to snapping photos, but I kept checking behind me to see if the big guy with a big club was coming back. He didnt.

I only use the situation to illustrate that at times, free speech and freedom of the press are threatened by intolerance. Nobody wanted to listen to the hate spewed by the Klan, including me, but I understood that our Constitution allows even morons the right to say what they want.

I often use free speech events as a teaching experience. A few years ago there was a group of proselytizers who would stand at the Five Points intersection near my house and shout out that the passersby were all sinners and were destined for a hot time in hell. One of my children objected to the daily harangue she experienced. I backed them up, pointing out that our rules of engagement allow people to shout out that sinners are among us.

Then this week President Donald Trump used his bully pulpit to level untrue accusations at us media types for producing fake news in response to reporters asking him for proof of his allegations that there was massive voter fraud, and a host of other Trumpisms.

Trumps castigation of the national media has delighted his supporters and has left reporters scratching their heads why some Americans are not believing them when they report verifiable, factual information that debunks Trumps false claims.

So even a president can make use of free speech at the cost of others for his own goals.

I think that development is why more White House reporters are challenging Trump in real time about this facts. The technique has risks, as reporters are often seen as confronting the president and not giving him a second chance to provide factual information. For now, I see no recourse for the press corps.

Our duty as reporters is to report the news and verify claims by any and all presidents, mayors, county commissioners and school board members. If we dont do that we leave Americans vulnerable to manipulation for personal or political gain by those they have granted power.

Fortunately, our founding fathers recognized this vital role of the press and included the institution in the First Amendment. I for one, am very grateful for that foresight.

Roger Schneider is city editor at The Goshen News and has been a journalist for 39 years.

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BLOG SPOT: First Amendment keeps presidents in check - Goshen News (blog)

Fayetteville, N.C. A Cumberland County high school teacher has been suspended after he stepped on an American flag as part of a history lesson on Monday.

A photo posted on Facebook shows Lee Francis, a history teacher at Massey Hill Classical High School in Fayetteville, standing over an American flag at the front of the class.

Students said Francis tried to burn and cut the flag before dropping it on the floor as part of a lesson on the First Amendment. At least two students walked out of the classroom during the demonstration.

"I put the flag on the ground and I took two steps with my right foot and I said, 'This is an example of free speech,'" Francis said. "Two students got up and left immediately with no word, no disruption at all...I assumed something had happened. One student came to where I was and took the flag from me."

Francis has been suspended with pay in connection with the incident until he meets with Superintendent Dr. Frank Till on Thursday.

Francis, who has relatives in the military, said he did not intend to offend students, but wanted to drive home the Supreme Court's definition of free speech.

Melissa Ramos has a daughter at the school and a son who is stationed at Fort Bragg. She said she was furious about the demonstration and demanded that Francis be fired.

"Just personally, as a military family, to have someone do that, thank goodness she wasn't in that class because of her experiences having friends not come home," she said. "There are so many other ways that he could have taught that instead of trying to desecrate the flag that so many people in this country have fought so hard for.

In a statement, Superintendent Dr. Frank Till Jr. said in a statement, "Clearly there are other ways to teach First Amendment rights without desecrating a flag. The situation is currently under investigation."

"I think he's right, absolutely there could be other ways to teach the subject, but in the same vein the way that I taught it can't necessarily be wrong," Francis said.

The Facebook post has gone viral with more than 10,000 shares.

The investigation is ongoing.

More here:
Flag lesson in First Amendment angers some parents - wral.com

Hugh Stevens is both a nationally known First Amendment and media lawyer and a versatile litigator. For more than 20 years Hugh served as general counsel to the North Carolina Press Association, which designated him as counsel emeritus upon his retirement in 2002. In 2003 the Association honored Hugh by selecting him to receive its W. C. Lassiter Award in recognition of his zealous defense of the First Amendment. In 2006 he became only the second lawyer inducted into the North Carolina Journalism Hall of Fame.

Hugh is a founding member and past chair of the North Carolina Bar Associations Section on Constitutional Rights and Responsibilities. In January, 2015 the Section presented Hugh with its John McNeill Smith Award in recognition of his extraordinary commitment to the ideals embodied in the Constitution of the United States and the Constitution of North Carolina.

Hugh also is a founding board member and past president of the North Carolina Open Government Coalition. Seewww.ncopengov.org.

Hugh continues to serve as general counsel to the North Carolina Press Foundation and as outside counsel to several North Carolina news organizations, including The News & Observer and WRAL-TV in Raleigh. He has represented news organizations, non-media companies and individuals in numerous cases involving libel, privacy and access to government records and proceedings, and was ABC News North Carolina counsel in the landmark newsgathering case of Food Lion v. Capital Cities/ABC, et al.

Hughs significant cases include two that dramatically affected the law of privacy in North Carolina Renwick v. News and Observer Pub. Co., in which the North Carolina Supreme Court declined to recognize the false light tort, and Hall v. Post, in which the court rejected private facts claims. He also was lead counsel for the plaintiff in Womack Newspapers, Inc. v. Town of Kitty Hawk, et al., 181 N.C. App. 1 (2007), in which a weekly newspaper obtained the largest attorney fee award ever paid pursuant to the North Carolina Public Records Law.

Hugh also is a versatile and experienced teacher. From 1985 until 2002 he taught a Free Press and Public Policy seminar at Duke Universitys Terry Sanford Institute of Public Policy. He also has taught First Amendment and media law at the University of North Carolina School of Law and the UNC School of Journalism and Mass Communication. He currently teaches a First Amendment course at North Carolina State Universitys Oscher Institute of Lifelong Learning.

In the early 1990s Hugh conceived the idea for a North Carolina Media Law Handbook and persuaded the Z. Smith Reynolds Foundation to provide the seed money for it. Since 1992 he has served as co-editor and author of the Privacy chapter for the Handbook, which currently is in its fifth (and first entirely electronic) edition. He also is the author of numerous book reviews, law review articles, Continuing Legal Education manuscripts and other publications. He also writes Hughs Views, a personal blog,http://www.hughstevens.blogspot.com/ and comments on First Amendment issues athttp://aboutthefirstamendment.com.

Hugh traces his interest in First Amendment law to his experience as an undergraduate at the University of North Carolina, where he served as co-editor of The Daily Tar Heel and joined other students leaders in fighting to overturn North Carolinas notorious speaker ban law, which forbade left-wing activists and leaders of Communist governments from appearing on university campuses. After completing law school at UNC in 1968, he served four years on active duty as a U.S. Navy JAG officer, during which he honed his trial skills in numerous courts-martial.

In addition to his media law practice, Hugh has extensive experience in commercial and insurance-related litigation. He has tried federal cases involving subjects as diverse as facultative reinsurance; an international airlines web site; fire truck trademarks; insurance broker negligence; ERISA; lawyer advertising; insurance and reinsurance for space satellites and launch vehicles; and defense of a phone card vendor accused of violating North Carolinas anti-lottery law.

Hughs community involvement includes long service as a director of Community Workforce Solutions, a not-for-profit agency that provides training and employment for physically and mentally impaired persons, and of the Episcopal Housing Ministry, which develops and manages apartments and social programs for low-income residents. His service to the University of North Carolina at Chapel Hill, his alma mater, includes membership in the Chancellors Club, the Board of Advisors to the Center for the Study of the American South, and the Board of Directors of the Friends of the Library, of which he is a past chair.

Hugh and his wife Marilyn have three children and five grandchildren. His hobbies are golf, reading, traveling, cooking and Boston Red Sox baseball.

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Hugh Stevens | Stevens Martin Vaughn & Tadych PLLC