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Public Citizen | First Amendment - First Amendment

First Amendment

Allergan v. FDA

Under our regulatory system, a manufacturer of a new drug cannot market or promote the product for any use not approved by the Food and Drug Administration. Because a drug may be safe and effective for one use, but unsafe or ineffective for another, the regulations are a crucial part of the federal scheme for protecting patients from unsafe and ineffective drugs.

In the fall of 2009, Allergan, Inc., the maker of Botox, sued the Food and Drug Administration, seeking to prevent the FDA from enforcing regulations that restrict drug manufacturers promotion of unapproved uses of drugs. Allergan claims that the restrictions violate the company's first amendment right to free speech. Public Citizen filed an amicus brief in support of the FDA, explaining that the restrictions challenged by Allergan are crucial for protecting patient health.

Salinger v. Colting

Author J.D. Salinger claimed that a novel infringed his copyright by including a character based on Holden Caulfield, the protagonist from Salinger's The Catcher in the Rye.   The district court enjoined publication of the novel. On appeal, Public Citizen filed a brief in favor of the defendant author, arguing that referencing Salinger's famous character was not copyright infringement and was protected by the First Amendment.

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.

City of Maywood v. Densmore

Joseph Densmore is a City of Maywood police officer. Densmore witnessed a more senior officer severely beat a handcuffed suspect, refused to lie about the incident as the senior officer requested, and went outside of the chain of command to report it. As a result, Densmore was treated poorly by his fellow officers and falsely accused of misconduct. Densmore brought this First Amendment retaliation suit.

In Garcetti v. Ceballos, 547 U.S. 410 (2006), the Court held that public employees' speech is not protected by the First Amendment if it was made pursuant to their official duties. The City of Maywood contends that Densmore's speech was made pursuant to his duties and therefore unprotected. The Court of Appeals found that there were disputed issues of material fact as to the scope of Densmore's job duties and denied summary judgment. Petitioners claim that there is a circuit split over whether the scope of a public employee's job duties is a question of law or a question of fact.

Adina Rosenbaum of Public Citizen is co-counsel for the respondent at the cert stage.

View docket updates.

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

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