[syndicated profile] yuletide_feed

Posted by ambyr

I was caught off-guard by this year's early Yuletide assignments! But now that we've all had some time to flail, maybe people are ready to buckle down and write.

Continuing the fine tradition of the previous years, here's a place to organize write-ins--a chance for local Yuletiders to gather and fight BEARS together. If you've never been to one before, imagine something like Yulechat, except in person and with fewer hippopotami.

So, want to meet other Yuletiders and have some company while you write? Comment here with your city or area as the first line in your comment, and see who else near you would like to get together. Coffeeshops make great locations, but so do bookstores, libraries, and anywhere else with a place to sit down and plug in laptops.
[syndicated profile] io9_feed

Posted by Madeleine Davies on Jezebel, shared by Cheryl Eddy to io9

We’ve read your emails and dug deep into the grave—sorry, the greys—to find the most buried, most frightening stories submitted by you, our dear readers, for this year’s Halloween scary story contest. What we’ve unearthed are 10 of scariest tales of ghosts, demons, stalkers, and murderers that we’ve ever read.


neotoma: Neotoma albigula, the white-throated woodrat! [default icon] (Default)
[personal profile] neotoma
Made a kimchijeon today using Maangchi's directions. It's kind of like okonomiyaki, but a lot spicier.

I'd make half a recipe if I make it again, since it's make a fair substantial pancake, and it's probably more spicy than I need. Otoh, if you use vegan kimchi, it is an easy vegan recipe.
[syndicated profile] tribeca_film_feed

Posted by lrodriguez@tribecafilminstitute.org

We've just concluded the second annual THROUGH HER LENS: The Tribeca Chanel Women's Filmmaker Program, and are thrilled to announce the project and recipient who will receive an $80,000 production grant for her original short film!

Feathers by A.V. Rockwell was selected by the jury to receive the production grant, along with production support from Pulse Films and Tribeca Studios and continued mentorship by Tribeca Film Institute. Additionally, the four other writer/directors in the program each received a $5,000 development grant to support continued work on their respective films to bring them closer to production.

The five filmmakers just went through an intensive three-day workshop, including six masterclasses with renowned artists; casting director Avy Kaufman, producer Amy Herman, director Shari Springer Berman, composer Laura Karpman, editor Sarah Flack, and cosume designer Arianna Phillips. Then the five filmmaker pairs pitched their projects to a jury comprised of: producer Anne Carey (20th Century Women, The Diary of a Teenage Girl), actor Dakota Fanning (American Pastoral, Night Moves), writer/director Tamara Jenkins (The Savages, Slums of Beverly Hills), writer/director/producer So Yong Kim (Lovesong, Treeless Mountain), and actor/director Jennifer Westfeldt (Kissing Jessica Stein, Friends With Kids). 

The jury said: “It was a great privilege to read and watch the work of these five filmmaking teams. We selected the filmmaker who we felt had a singular voice and are excited to support her development as an artist.”

A.V. Rockwell commented, "Getting into THROUGH HER LENS was already an honor. I'm very grateful that the jury has given me the opportunity to see Feathers come to life."

Feathers, written by Rockwell, is about Eli, a volatile inner-city youth, who creates havoc in his attempts to re-escape from the mysterious and crumbling juvenile detention center known as “The Mill.” When the repercussions become more dire than he can handle, Eli gains purpose and introspection on his troubled life.

The announcement wraps up a powerful program, presented by Tribeca and CHANEL, in collaboration with Pulse Films, and facilitated by Tribeca Film Institute® (TFI).

Be sure to stay connected with us on Facebook, Twitter, and Instagram to follow updates on these five filmmakers as they continue to make films and carve out their creative careers.

(no subject)

Oct. 28th, 2016 10:12 pm
jekesta: will you be my grandfather? (be my grandfather)
[personal profile] jekesta
1. My computer is trying to die and I'm trying not to let it die but dying is easier than urging lifeforce into electronics so I'm probably going to lose.

2. This is a great tumblr post from Sady Doyle about Hillary and smiling politely while men are dicks.
This is a great tumblr post full of Hillary's ACCOMPLISHMENTS which are better than yours.
This is a gifset of Kate McKinnon as Hillary speaking both to Hillary's soul and to all our souls.
This is a post I might have already linked to, about the disclaimers you're expected to make for Hillary that you would never made for anyone else.

3. Button Moon more than made up for a lack of Bertha yesterday. My niece loved it, and asked for more of it every time she remembered it. "I love it because it is a button".

(We've only been watching so much telly because she's been ill, usually we're not allowed.) (I know that's a very middle class disclaimer.)

She's right to love it. And I was right to love it when I was her age also. Button Moon is pretty perfect. I'd go so far as to say it's nearly as good as Blakes 7.

Dumb Luck for the Win

Oct. 28th, 2016 05:07 pm
james_davis_nicoll: (Default)
[personal profile] james_davis_nicoll
Feels stupid because I forgot to schedule a Halloween suitable book for review next week,

Picks up next book in the Sponsored Review Stack.

It's about witches.

Halloween is a significant event.

(no subject)

Oct. 28th, 2016 09:42 pm
oursin: The Delphic Sibyl from the Sistine Chapel (Delphic sibyl)
[personal profile] oursin

It turns out losing online friends feels as bad as the death of 'real life' ones.

Tempted to go, Well, DUH, but given the ongoing woezery about the superficiality of social media and internet connections, End Times Be Here, it probably does need to be said.

Okay, I slightly cringe - it is probably A Very British Problem - when I see that Facebook meme about if you have a friend you would not have but for encountering them online, repost this. But just about any of those 'repost this' memes make me twitch.

And of course the other side to these online friendships, the downside, is that one misses them if they fade or come to parting of the ways just as much as 'real-life' friendships.

Also, I feel that the nature of the friendship changes depending on the particular forum in which it is expressed - waxes nostalgic for the old glory days of LJ, as if they did not have their own problematic elements - and that keeping up with people via FB or Twitter is Not The Same. May be Just Me.

[syndicated profile] io9_feed

Posted by James Whitbrook

The end has come. Twelve issues later, the story of Marvel’s premier android avenger and his quest to make the perfect family has come to a close. The final issue, out this week, gave the Vision and his family closure: it was tragic, it was hopeful, and, as ever with this series, it was all immaculately delivered.


[syndicated profile] io9_feed

Posted by Cheryl Eddy

A month ago, we gleefully anticipated a new short-film spotlight on the El Rey channel, The People’s Network Showcase. Gleefully, because the theme is “horror” and the host will be John Carpenter. Now we’ve got a sneak peek behind the scenes, with a look at bite-sized creature feature The Visitant.


[syndicated profile] volokh_conspiracy_feed

Posted by Eugene Volokh

A stream of binary coding, text or computer processor instructions, is seen displayed on a laptop computer screen as a man works to enter data on the computer keyboard in this arranged photograph in London, U.K., on Wednesday, Dec. 23, 2015. The U.K.s biggest banks fear cyber attacks more than regulation, faltering economic growth and other potential risks, and are concerned that a hack could be so catastrophic that it could lead to a state rescue, according to a survey. Photographer: Chris Ratcliffe/Bloomberg

(Chris Ratcliffe/Bloomberg)

The Supreme Court has just agreed to hear Packingham v. North Carolina, a case I’ve been following closely — my students Jeremy Page, Mike Romeo and Sydney Sherman, and I filed a friend-of-the-court brief supporting the petition for Supreme Court review, filed on behalf of professors Ashutosh Bhagwat, Richard Garnett, Andrew Koppelman, Seth Kreimer, Lawrence Lessig, Sanford Levinson, Robert O’Neil, David Post, Lawrence Sager, Seana Shiffrin, Steven Shiffrin, Geoffrey Stone, Nadine Strossen, William Van Alstyne and James Weinstein. Given this, I thought I’d repost my discussion of the case and of our brief.

* * *

North Carolina bans registered sex offenders from accessing any social media sites that allow under-18-year-olds to post; these include Facebook, Twitter and more. The law isn’t limited to people who are in prison or on probation (whose First Amendment rights are sharply reduced because of that); it applies even to people who have finished serving their sentences. Nor is the law limited to sex offenders who committed crimes against minors (though I think that too would be unconstitutional). Rather, the law makes it a crime for any registered sex offender to either post to such a site or even read it, on the theory that the law is needed “to prevent registered sex offenders from prowling on social media and gathering information about potential child targets.” Yet in November the North Carolina Supreme Court upheld the statute, by a 4-2 vote.

I think there are many First Amendment problems with the North Carolina Supreme Court decision, and the petition for Supreme Court review filed in this case (Packingham v. N.C.) lays them out well; see also David Post’s blog post on the case, published after the North Carolina decision came down. There’s also a split among lower courts on this very issue, as the petition (cowritten by our very own John Elwood) also explains. But here I want to focus on the argument stressed in our amicus brief — the “ample alternative channels” inquiry.

The Supreme Court has held that content-neutral speech restrictions (e.g., limits on noise, on the size of demonstrations, and so on) can be upheld if they are “narrowly tailored” to an “important government interest” and leave open “ample alternative channels” for expression. Thus, relatively modest burdens on speech (ones that leave open ample alternative channels) are subject to relatively government-friendly review (the requirement that the law be narrowly tailored to an important government interest, with “narrow tailoring” being read in a not especially strict way). But more serious burdens on speech (ones that don’t leave open ample alternative channels) are subject to far more demanding scrutiny. The North Carolina Supreme Court purported to apply this test.

How can a total ban on some people’s use of Facebook, Twitter and the like be said to leave open “ample alternative channels”? Here is the North Carolina Supreme Court’s explanation (paragraph break and emphases added):

In his brief and argument to this Court, defendant lists numerous well-known Web sites that he contends he could not access legally. In considering those and other similar sites, we find that even where defendant is correct, the Web offers numerous alternatives that provide the same or similar services that defendant could access without violating N.C.G.S. § 14-202.5.

For example, defendant would not violate N.C.G.S. § 14-202.5 by accessing the Paula Deen Network, a commercial social networking Web site that allows registered users to swap recipes and discuss cooking techniques, because its Terms of Service require users to be at least eighteen years old to maintain a profile. Similarly, users may follow current events on WRAL.com, which requires users to be at least eighteen years old to register with the site and, as a result, is not prohibited. A sex offender engaging in an on-line job search is free to use the commercial social networking Web site Glassdoor.com, which prohibits use by individuals under the age of eighteen. Finally, sex offenders permissibly may access Shutterfly to share photos, because that site limits its users to those eighteen and older.

That’s right: The people restricted by the law can’t read or post to Facebook, Twitter and so on. But no problem — the sex offender still has ample alternative channels, such as the Paula Deen Network, WRAL.com, Glassdoor.com and Shutterfly. The state has argued that the North Carolina Supreme Court focused on the Paula Deen Network because the defendant argued, in part, that he couldn’t use certain other food-related sites. But the defendant also argued that he couldn’t use Facebook and the other giants, and the court didn’t — and couldn’t — explain how the Paula Deen Network and the other sites constitute an ample alternative to those massive social networks.

And this watering down of the “ample alternative channels” inquiry of course doesn’t just apply to sex offenders. The very same test applies to restrictions on other speakers as well; under the North Carolina Supreme Court’s opinion, all those restrictions would be judged under the same lax version of the “ample alternative channels” test. Unsurprisingly, this conflicts with the Supreme Court’s precedents (such as City of Ladue v. Gilleo (1994)) and with many other courts’ faithful applications of those precedents. (Some other courts have read the “ample alternative channels” prong anemically, but none so much as the North Carolina Supreme Court.)

In any case, here’s our amicus brief (with footnotes omitted; for the full text, see the PDF) — thanks to my students for all their work on it:

Summary of Argument

N.C. Gen. Stat. Ann. § 14-202.5 bans convicted sex offenders from accessing a vast range of social networking sites — sites that have become indispensable places for speech about family life, politics, and religion. Yet the North Carolina Supreme Court upheld the law on the grounds that it supposedly left open “ample alternative channels.” Pet. App. 18a.

True, the court acknowledged, the statute banned access to Facebook and the like. Id. at 19a. The dissent also noted that the statute banned access to LinkedIn, Instagram, Reddit, Myspace, and the New York Times Web site. Id. at 32a. But, the court argued, the statute left open access to other social networking websites:

  • The Paula Deen Network, a site that lets registered users to swap recipes and discuss cooking techniques;
  • WRAL.com, the site of a local TV station;
  • Glassdoor.com, an online job searching tool;
  • Shutterfly.com, a photo-sharing website.

Id. at 17a. This looks more like a parody of the “ample alternative channels” analysis than a serious application of that analysis.

Indeed, this government-friendly approach to the “ample alternative channels” inquiry is sharply inconsistent with this Court’s most recent precedent on the matter, City of Ladue v. Gilleo, 512 U.S. 43 (1994). It is also inconsistent with circuit court cases that have taken seriously the requirements that the alternatives indeed be “ample.” See Part II.A (discussing such cases from the Second, Sixth, Seventh, Ninth, and D.C. Circuits).

Unfortunately, though, the North Carolina court is not alone in interpreting the “ample alternative channels” prong so feebly. Perhaps because of the subjectivity of the term “ample,” some federal circuit court cases have similarly departed from this Court’s teachings in City of Ladue, and from the other circuit court decisions we cite above. See Part II.B. This Court ought to grant review to provide lower courts with more guidance about how demanding the “ample alternative channels” analysis should be.


I. This Case Offers This Court an Opportunity to Clarify the Jurisprudence Regarding “Ample Alternative Channels”

A. The North Carolina Statute Bars Access to Some of the Most Important Venues for Online Speech

Section 14-202.5 prohibits a registered sex offender from knowingly “access[ing]” any “commercial social networking Web site” (with narrow exceptions) that “permits minor[s]” “to become members or to create … personal Web pages.” N.C.G.S. § 14-202.5. This bars people from reading a vast range of speech, and sharply limits their ability to reach a vast potential audience with their own speech.

Packingham was convicted for accessing Facebook. As of 2014, 71% of online American adults used Facebook, which amounted to 189 million monthly users. The same year, Facebook had almost 1.5 billion users worldwide who accessed the site at least monthly, a number equal to half of the world’s online users.

Likewise, 28% of online adults in the United States use LinkedIn, another website covered by § 14-202.5. LinkedIn is a prominent professional networking platform that lets users create profiles showing their professional background and connect with each other, recruiters, and businesses. Access to LinkedIn can significantly enhance a registered sex offender’s chances of obtaining a job. A 2013 study found that 77% of employers used social media networks to recruit candidates. Of those using social media, 94% said they used LinkedIn.

An equal percentage of online U.S. adults (28%) reported using Pinterest, another social networking website designed to help users create a virtual bulletin board of clothing, art projects, furniture, and the like that the user finds interesting. Each “pin” is linked to retail websites where the user can purchase whatever caught his eye.

Likewise, 26% of online U.S. adults reported using Instagram, another popular social media platform that allows users to post photos. Another 23% of online adults use Twitter, which allows users to publish short items to readers who have subscribed to the user’s Twitter account. Section 14-202.5 bans access to all of these popular social media websites. The statute thus criminalizes a wide variety of speech to and from the many tens of millions of Americans who make regular use of these sites.

And sites such as Facebook and Twitter have become a prominent and uniquely effective form of communication for which there is virtually no equivalent substitute. Facebook lets users as speakers communicate quickly and effectively with friends and family, sharing personal thoughts, political ideas, and news stories. According to a 2014 survey conducted by the Pew Research Center, 61% of millennials reported getting news about politics and government in the previous week from Facebook.

Facebook also lets users as readers get a wide range of information that originates or first becomes widely spread on Facebook. To offer one especially famous example, in 2011, a video of Tunisian merchant Mohamed Bouazizi’s self-immolation reached the world as it “hopped across hundreds of Facebook pages,” helping give rise to what came to be known as the Arab Spring. Many such videos may remain available only on Facebook, without being copied to other sites. The North Carolina statute makes it a crime for sex offenders to even “access” Facebook. N.C. Gen. Stat. § 14-202.5(a).

Likewise, social media has become a staple of U.S. election campaigns. During the 2012 election, both the Republican National Committee and President Obama’s re-election campaign created their own Facebook apps that let users get information about the campaign, interact with other candidate supporters, and even make phone calls on behalf of the candidate from the comfort of their own homes. The Obama campaign also created a special app designed to target young swing-state voters.

Other social media sites likewise let users engage with the political process. Senator Rand Paul, for instance, promoted his filibuster of the USA Patriot Act using Twitter. Likewise, Senator Ted Cruz read Twitter messages on the floor of the Senate in March 2013.

Local governments and public officials are also establishing official Facebook pages for cities and city departments, recognizing the social media giant’s power to grant them access to constituents at little or no cost. Section 14-202.5 bars people from accessing any of this crucial information, much of which can only be found on Facebook or on other social media sites covered by the statute.

B. The Lower Court’s Analysis Is Inconsistent with This Court’s Handling of Ample Alternative Channels in City of Ladue

In City of Ladue, 512 U.S. at 45, this Court invalidated an ordinance that it treated as a total ban on homeowners displaying signs on their property. The ordinance, this Court concluded, did not leave open “adequate substitutes” for the important medium of speech that it foreclosed. Id. at 56.

The city argued that the ordinance left people “free to convey their desired messages by other means, such as hand-held signs, ‘letters, handbills, flyers, telephone calls, newspaper advertisements, bumper stickers, speeches, and neighborhood or community meetings.’” Id. at 56 (citation omitted, italics deleted). But these alternatives, this Court held, were inadequate because they tended to convey a substantively different message, were not as cost-effective, or failed to reach the speaker’s intended audience.

Section 14-202.5 similarly violates the First Amendment, because it does not leave open adequate alternative channels of communication. The court below erred in holding otherwise.

As alternatives, the court below suggested “the Paula Deen Network, a commercial social networking Web site that allows registered users to swap recipes and discuss cooking techniques”; the TV station website WRAL.com, a mainstream media outlet for news; “the commercial social networking Web site Glassdoor.com,” which could potentially allow a sex offender to search for jobs online; and the web site Shutterfly, which lets people share photographs. Pet. App. 17a. The court further observed that the statute did not restrict “such methods of communication as text messages, FaceTime, electronic mail, traditional mail, and phone calls, which are not based on use of a Web site.” Id. at 18a.

But these alternatives do not even come close to letting people express themselves as effectively as they can on Facebook, Twitter, and similar sites, or letting people read the material available on such sites. Like in City of Ladue, there is no adequate alternative to the communicative impact of the forbidden social media.

Social media is “an unusually cheap and convenient form of communication,” City of Ladue, 512 U.S. at 57, which lets people easily communicate with large audiences. Id. Many social media sites, including Facebook, Twitter, Pinterest, and Instagram, are free for ordinary users. And communicating through such sites is also extraordinarily convenient.

Facebook, for instance, makes it easy to share your posts on other social media pages. It automatically promotes your post to your friends; blogs do not. It lets friends easily comment on the posts. And it lets people communicate with their friends in a way that is not unduly intrusive. Someone who e-mails posts each day to hundreds of friends will soon find himself with many fewer friends; posting the same items on Facebook is much less distracting to recipients.

The Paula Deen Network and the other alternative sites proposed by the court below fall far short of reaching the kind of audience that Facebook or Twitter are able to reach. To reach your friends and acquaintances through a social media site, they need to be on that site; many fewer people are on the Paula Deen Network than on Facebook. As in City of Ladue, the restriction interferes with a speaker’s ability to reach “an audience that could not be reached nearly as well by other means.” Id.

And the alternatives offered by the court below also interfere with people’s ability to read the content they want to read. The personal, political, and religious content a user seeks to access by using Facebook cannot be found on a recipe website.

As this Court made clear in City of Ladue, the mere fact that alternate methods of communication exist does not mean that these channels are “ample alternative channels,” which is to say “adequate substitutes” for the channels that are forbidden. Id. at 56-57. And there is no adequate substitute for the social media giants foreclosed by § 14-202.5. The decision of the court below cannot be reconciled with this Court’s ruling in City of Ladue.

II. This Case Would Let This Court Resolve a Disagreement Among Lower Court Decisions About How “Ample Alternative Channels” Should Be Understood

The North Carolina court’s weak reading of the “ample alternative channels” requirement is a symptom of a broader problem: Lower court decisions have split on how this requirement should be understood.

A. Many Circuit Court Decisions Have Applied the “Ample Alternative Channels” Requirement Rigorously

Many circuit court decisions rigorously analyze whether the proposed alternative channels are ample (or adequate), and conclude that they are not ample or adequate if they do not let speakers reach substantially the same audience. For example:

1. The Seventh Circuit has expressly stated that an alternative channel “is not adequate if it ‘foreclose[s] a speaker’s ability to reach one audience even if it allows the speaker to reach other groups.’” Weinberg v. City of Chicago, 310 F.3d 1029, 1041 (7th Cir. 2002)(quoting Gresham v. Peterson, 225 F.3d 899, 907 (7th Cir. 2000)). Because of this, the Seventh Circuit struck down a Chicago ordinance that banned selling merchandise — such as books — on certain city sidewalks, including in front of the Chicago Blackhawks hockey stadium. The ban, the court held, failed to leave open “ample alternative channels” for communication, because the plaintiff’s intended audience consisted of Blackhawks fans, and selling plaintiff’s book online, at bookstores, or in other areas of the city would not as effectively reach that audience. Id. at 1041, 1042.

2. The Ninth Circuit has likewise concluded that “an alternative is not ample if the speaker is not permitted to reach the intended audience.” Bay Area Peace Navy v. United States, 914 F.2d 1224, 1229 (9th Cir. 1990)(reaffirmed after City of Laduein Long Beach Area Peace Network v. City of Long Beach, 574 F.3d 1011, 1025, 1038 (9th Cir. 2008)). In Bay Area Peace Navy, the government established a 75 yard “security zone” around Aquatic Park Pier in which only invited guests were allowed during “Fleet Week,” an event that included a naval vessel parade. Id. at 1225-26. The Peace Navy, which used small boats for an anti-war counter-demonstration during Fleet Week, challenged the security zone on First Amendment grounds. Id. at 1226-27.

The Ninth Circuit found that the zone around the pier did not leave the Peace Navy with ample alternative channels of communication, because it kept the Peace Navy’s message from reaching the government’s invited guests on the pier. Id. at 1230. The alternatives of “passing out pamphlets on land or demonstrating at the entrance to the pier,” the court concluded, were inadequate, because the invited guests could not see any message conveyed from those positions. Id. at 1229.

3. In Cleveland Area Bd. of Realtors v. City of Euclid, 88 F.3d 382 (6th Cir. 1996), the Sixth Circuit struck down a city ordinance that largely limited signs in residential neighborhoods to three or four square feet, and required that they be placed in windows rather than on lawns. Id. at 383-84. The court treated the ordinance as content-neutral, but concluded that it did not leave open ample alternative channels for communication. Id. at 387-88, 390.

The proffered alternatives — such as the use of real estate agents, newspaper advertisements, or window signs — were inadequate, the court held. Real estate agents were “considerably more expensive” than “for sale” yard signs. Id. at 390. Window signs were “‘completely ineffective,’” id. (quoting the district court decision), and thus “greatly restrict a speaker’s audience.” Id. (The court presumably concluded that window signs were ineffective because they were so hard to see, the reason given by the district court decision. Cleveland Area Bd. of Realtors v. City of Euclid, 833 F. Supp. 1253, 1260 (N.D. Ohio 1993).).

4. In Initiative & Referendum Institute v. U.S. Postal Service, 417 F.3d 1299 (D.C. Cir. 2005), the D.C. Circuit held that a regulation banning “soliciting signatures on petitions, polls, or surveys” on all postal service property would be unconstitutional as to exterior sidewalks that were traditional public fora. Id. at 1303, 1314. The regulation, the court concluded, failed to leave open “ample alternative channels” for communication, id. at 1302, 1312 — the ban on signature solicitation significantly “‘limit[ed] the size of the audience’” a person could reach, id. at 1312(citation omitted).

5. In Bery v. City of New York, 97 F.3d 689 (2d Cir. 1996), the Second Circuit struck down a provision of New York City’s administrative code that “bar[red] visual artists from exhibiting, selling or offering their work for sale in public places in New York City without first obtaining a general vendors license.” Id. at 691. The ordinance, the court held, failed to leave open ample alternative channels of communication. Id. at 698.

Though the city argued that the plaintiffs could sell their artwork from their homes or from galleries or museums, id., the court concluded that displaying art on the street reached a different audience (people who do not attend galleries or museums). Id. at 698. “Appellants are interested in attracting and communicating with the man or woman on the street who may never have been to a gallery and indeed who might never have thought before of possessing a piece of art until induced to do so on seeing [plaintiffs’] works.” Id. “The sidewalks of the City must be available for [plaintiffs] to reach their public audience.” Id.

B. Other Court Decisions, Including the Decision Below, Treat Even Much Inferior Channels as “Ample Alternatives”

Other court decisions, on the other hand, have departed from the principles of City of Ladue and of the circuit decisions discussed above, by concluding that ample alternative channels exist even when the alternatives block speakers from reaching much of their target audiences.

1. In Marcavage v. City of New York, 689 F.3d 98 (2d Cir. 2012), the city relegated protesters at the 2004 Republican National Convention to a demonstration zone that “was not within ‘sight and sound’ of the intended audience” of convention delegates. Id. at 102, 108. The Second Circuit held that this zone was an “ample alternative” to demonstrating in front of the Convention, even though the protesters were placed too far for the delegates to hear. The court specifically rejected the analysis of the Ninth Circuit in Bay Area Peace Navy, noting that the Ninth Circuit’s decision was “not persuasive,” and was a split decision from another circuit.” Id. at 108 n.2.

2. In Jacobs v. Clark County School Dist., 526 F.3d 419 (9th Cir. 2008), the Ninth Circuit upheld school uniform policies that prohibited students from displaying printed messages on their school clothing. Id. at 422-27, 437. In Jacobs, the Ninth Circuit did not apply any special rule for schools, for instance the rule of Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969). Instead, the court applied the normal intermediate scrutiny standard applicable to “law[s] restricting speech on a viewpoint- and content-neutral basis” outside school. Jacobs, 526 F.3d at 429-34.

And the restriction, the court concluded, left open ample alternative channels: students could still express themselves via “verbal conversations,” through the school newspaper, by joining student clubs, and by wearing whatever they wanted after school and on weekends. Id. at 437. Yet the clothes one wears outside school cannot reach the same audience that one has in school. Likewise, one can only have verbal conversations with a few people; a T-shirt can be seen by many more. And many students who do not read the school newspaper or join student clubs can still see messages on T-shirts.

3. As Part I noted, the North Carolina Supreme Court’s opinion applies the “ample alternative channels” prong in an even more government-friendly manner than do Marcavage and Jacobs.

All these cases would have come out differently under the analysis of the cases discussed in Part II.A. The restrictions upheld in Marcavage, Jacobs, and the decision below “‘foreclose[d] a speaker’s ability to reach [his chosen] audience,’” Weinberg, 310 F.3d at 1041 (citation omitted). They did “not permit[ the speaker] to reach the ‘intended audience,’” Bay Area Peace Navy, 914 F.2d at 1229. They “greatly restrict[ed] a speaker’s audience,” Cleveland Area Bd. of Realtors, 88 F.3d at 390. They significantly “‘limit[ed] the size of the audience’” a person could reach, Initiative & Referendum Institute, 417 F.3d at 1312 (citation omitted). And they failed to allow the speakers “to reach their public audience,” Bery, 97 F.3d at 698.

C. This Disagreement Merits This Court’s Attention

The head count of the positions taken by these courts is complicated. The Sixth, Seventh, and D.C. Circuits hold that alternative channels are ample only if they let a speaker reach essentially the same audience. The North Carolina Supreme Court holds that they are ample even when they reduce the speaker to a tiny fraction of his potential audience. And the Second and Ninth Circuits have precedents going both directions, without confronting the disagreements among the precedents. (The Second Circuit’s speech-restrictive Marcavage decision does not discuss the speech-protective ample alternative channels analysis in Bery, and the Ninth Circuit’s speech-restrictive Jacobs decision does not discuss the speech-protective ample alternative channels analysis in Bay Area Peace Navy.)

But the disagreements both among and within circuits reflect the need for this Court to step in. The “ample alternative channels” test is, understandably, not self-defining. When “the meaning of [such] concepts cannot be adequately expressed in a simple statement,” and yet such concepts are of constitutional significance, “this Court’s role in marking out the limits of the standard through the process of case-by-case adjudication is of special importance.” Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 503 (1984). Inconsistent interpretations of this Court’s precedents, such as in the lower court decisions identified in this Part, signal that it is time for this Court to offer more benchmarks for lower courts to follow in this important area of First Amendment law.


The court below essentially refused to apply the “ample alternative channels” requirement in any meaningful way. In this respect, its decision was an extreme version of some circuit court decisions, and inconsistent with other circuit court decisions and with this Court’s decision in City of Ladue. This Court should grant certiorari and remind lower courts that the “ample alternative channels” requirement should be robustly applied.

[syndicated profile] volokh_conspiracy_feed

Posted by Eugene Volokh

From Pink v. Rome Youth Hockey Association, a New York high court case from Wednesday:

In November 2006, defendant [the volunteer-run nonprofit Rome Youth Hockey Association] rented a local arena owned by the City of Rome to host a hockey tournament for 13-year-old players. Approximately 50-75 spectators attended the game between Rome and Whitestown. Both teams belonged to their respective youth hockey associations and both associations were part of USA Hockey, the national governing organization.

During the game, several on-ice fights broke out between the players, who received penalties and in some cases were ejected from the game. The referee also ejected the Whitestown coach for throwing an object onto the ice. The spectators, mostly family members of the players, engaged in yelling and name calling.

The game concluded without any physical altercation in the stands. After the game was over, two female spectators got into a fight in the stands and a melee quickly ensued as several others, including plaintiff Raymond Pink, stepped in to break up the fight. Matthew Ricci, the brother of one of the two female spectators involved in the fight, struck plaintiff causing him to sustain a head injury. Ricci subsequently pled guilty to criminal assault. The two female spectators pled guilty to disorderly conduct.

Pink sued the Rome Youth Hockey Association, the Whitestown Youth Hockey Association, the city, Ricci, and the other brawlers; the lawsuit against the Rome Association rested on the theory that it “owed a duty to protect plaintiff from criminal assault,” and “was negligent in failing to enforce the USA Hockey’s ‘Zero-Tolerance’ policy,” which “required on-ice officials to seek to remove spectators from the game for use of obscene or vulgar language or for threatening or using physical violence.” The trial court let the case go forward, because “tensions between the spectators essentially put defendant on notice of the need to enforce the Zero-Tolerance policy,” and, “by failing to enforce the policy, defendant ‘may have violated a duty [it] assumed.’” “The court also held Ricci’s actions did not absolve defendant of liability. Plaintiffs subsequently settled with the City of Rome, Ricci, and several other individual defendants.”

But the high court held that the Rome association was not liable:

With respect to landowners and leaseholders, there is a “duty to control the conduct of third persons on their premises when they have the opportunity to control such persons and are reasonably aware of the need for such control.” That duty includes “minimiz[ing] foreseeable dangers on their property,” including “foreseeable criminal conduct.” …

The scope of a duty “is defined by past experience and the ‘likelihood of conduct on the part of third persons … which is likely to endanger the safety of the visitor,'” and “is limited to risks of harm that are reasonably foreseeable.” … On this record, the criminal assault on plaintiff was not a reasonably foreseeable result of any failure to take preventive measures. … The behavior of the fans, however inappropriate, certainly did not create the risk that failure to eject any specific spectator would result in a criminal assault, particularly since such an assault had never happened before.

Plaintiff argues that defendant’s failure to enforce the Zero-Tolerance policy by ejecting spectators constitutes independent evidence of negligence. The policy provides that “the on-ice official” will remove spectators using “obscene, racial or vulgar language” from the game. However, the “violation of a[n] [organization]’s internal rules is not negligence in and of itself,” and where an internal policy exceeds “the standard of ordinary care,” it “cannot serve as a basis for imposing liability.” Nor did the policy demonstrate that defendant was on notice of the likelihood of criminal assaults since a “general awareness” of incidents nationwide does not establish foreseeability here. …

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Posted by Jonathan H. Adler

FILE - In this Feb. 13, 2016, file photo, people stand on the steps of the Supreme Court at sunset in Washington. The ideological direction of the Supreme Court is going to tip one way or the other after the election. The outcome could sway decisions on issues that profoundly affect everyday Americans: immigration, gun control, climate change and more. The court has been operating with eight justices since Antonin Scalia died in February. His successor appears unlikely to be confirmed until after the election, at the earliest. The court is split between four Democratic-appointed, liberal justices and four conservatives who were appointed by Republicans, although Justice Anthony Kennedy has sided with the liberals on abortion, same-sex marriage and affirmative action in the past two years. (AP Photo/Jon Elswick, file)

The Supreme Court building in Washington. (Jon Elswick/Associated Press)

Today the U.S. Supreme Court agreed to hear Gloucester County School Board v. G.G., a case concerning a school district’s obligation to accommodate a transgender student under Title IX and the U.S. Education Department’s implementing regulations.

This case both concerns questions about the meaning of Title IX, as well as the extent to which courts must defer to agency interpretations of their own regulations, as I’ve discussed in prior posts. In recent years, several justices and many scholars have raised questions about Seminole Rock and Auer deference, under which such deference is often required.  If Auer and Seminole Rock are to be reconsidered, it will not be in this case.

In granting certiorari, the Court limited its consideration of the case to the following two questions:

If Auer is retained, should deference extend to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought?

With or without deference to the agency, should the Department’s specific interpretation of Title IX and 34 C.F.R. § 106.33 be given effect?

Under the latter question, the issue is whether a school district’s refusal to treat a student in accordance with his or her professed gender identity constitutes discrimination “on the basis of sex” under Title IX of the 1972 Education Amendments.

The Gloucester County, Va., School Board’s petition for certiorari had also asked the Court to also address the vitality of Auer deference, but this question was not part of the grant. This is not the first time the Court has passed on the opportunity to reconsider Auer. For what it’s worth, I also joined an amicus brief with Professors Michael McConnell and Richard Epstein, filed by the Cato Institute, urging the Court to grant certiorari in order to reconsider this doctrine. Apparently our brief was not sufficiently convincing.

While the Court is not prepared to reconsider Auer and Seminole Rock, it may be willing to narrow their scope. While the questions presented presume the vitality of the underlying doctrine, the first question presents an opportunity to narrow the doctrine’s application, much as the Court’s Mead decision narrowed and clarified the application of Chevron deference.

Under Mead, agency interpretations of ambiguous federal statutes do not receive deference if they do not carry the force of law. As a practical matter, this means that, in order to receive deference, agency interpretations should be the product of notice-and-comment rulemakings or other agency proceedings. If Auer and Seminole Rock are to survive, the application of a similar principle would be most welcome.  It would also bring further clarity and consistency to the various deference doctrines in administrative law.

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Posted by Mike Glyer

To speed prospects of getting his Lucas Museum of Narrative Art built somewhere, George Lucas has released architect’s drawings of the building as it would look in Los Angeles, beside the Coliseum in Exposition Park, and in San Francisco, on … Continue reading
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Posted by James Whitbrook

The empowerment behind all of our favorite superhero stories is what makes the genre such a timeless one, filled with stories that can reach people across all age barriers. Sidekick, featuring some familiar faces from Arrow, Flash, and more, uses that empowerment to deliver a heartwarmingly sweet tale.


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Posted by Andrew Liszewski on Sploid, shared by Cheryl Eddy to io9

Besides the free candy, Halloween is supposed to be about scaring yourself silly. But don’t waste your time on horror movies, haunted houses, or ghost stories. Just watch this behind-the-scenes look at how Hyperflesh makes its oversized baby masks. You’ll be terrified of going anywhere near a daycare afterwards.



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