First Amendment

Milavetz, Gallop & Milavetz v. United States (08-1119); United States v. Milavetz, Gallop & Milavetz (08-1225)

in

Oral argument: Dec. 1, 2009

Appealed from: United States Court of Appeals for the Eighth Circuit (Sept. 4, 2008)

BANKRUPTCY, FIRST AMENDMENT, FREEDOM OF SPEECH, DUE PROCESS

This case concerns the application and constitutionality of three Bankruptcy Code provisions applicable to debt relief agencies: 11 U.S.C. §§ 526(a), 528(a)(4), and 528(b)(2)(B). Minnesota law firm Milavetz, Gallop & Milavetz, P.A. claims exemption from the provisions, arguing that an attorney is not a “debt relief agency.” Furthermore, it claims that 11 U.S.C. § 526(a), which prevents a “debt relief agency” from counseling a client to incur additional debt in contemplation of bankruptcy, is an unconstitutionally overbroad restriction of free speech. Finally, Milavetz argues that 11 U.S.C. §§ 528(a)(4) and 528(b)(2)(B), which require a “debt relief agency” to make certain disclosures in their advertisements, violate the First Amendment. The United States argues that the statutes apply to attorneys and that they are reasonable and specific restrictions on speech. This case’s outcome will potentially affect bankruptcy laws, disclosure laws, and the legal advice that a lawyer may provide a client.

Read more

Commercial Speech

in

Commercial speech has been defined by the Supreme Court as speech where the speaker is more likely to be engaged in commerce, where the intended audience is commercial or actual or potential consumers, and where the content of the message is commercial in character.

Read more

Absolute privilege

in

Definition

If a statement is made in certain contexts or in certain venues, the First Amendment may give the speaker an absolute defense to a charge of defamation. This privilege usually only exists in the government context; for example, sworn testimony in a judicial or legislative hearing is privileged.

United States v. Stevens (08-769)

in

Oral argument: October 6, 2009

Appealed from: United States Court of Appeals for the Third Circuit (July 18, 2008)

DOG FIGHTING, ANIMAL CRUELTY, PIT BULLS, FIRST AMENDMENT, FREE SPEECH, CRUSH VIDEOS

The United States prosecuted Robert J. Stevens (“Stevens”) for violating 18 U.S.C. § 48, which states: “Whoever knowingly creates, sells, or possesses a depiction of animal cruelty with the intention of placing that depiction in interstate or foreign commerce for commercial gain, shall be fined under this title or imprisoned not more than 5 years, or both.” Stevens was prosecuted for selling videos depicting dog fights. Stevens claimed that § 48 violates his First Amendment right to free speech and is therefore unconstitutional. The Third Circuit held that § 48 reached a form of protected speech and that the government’s interest in preventing animal cruelty is not a sufficiently compelling interest to justify a ban on depictions of animal cruelty. How the Supreme Court decides this case will reflect its view on the scope of the First Amendment right to speech and affect the power of Congress to identify new areas of unprotected speech.