speech

Expressions Hair Design v. Schneiderman

Issues

Does New York’s no-surcharge law (N.Y. Gen. Bus. Law § 518), which requires merchants to label price differences as a cash “discount” rather than a credit-card “surcharge,” unconstitutionally restrict speech?

The Court must consider whether New York’s surcharge ban that requires merchants to label price differences as a cash discount rather than a credit-card surcharge unconstitutionally restricts speech. Petitioners Expressions Hair Design et al. argue that criminalizing truthful speech about credit-card costs violates the First Amendment because it prevents the free flow of accurate ideas amongst the public. Eric T. Schneiderman, in his official capacity as Attorney General of the State of New York, on the other hand, asserts that the law regulates conduct and not speech; thus, the price controls fall outside of the ambit of the First Amendment entirely. The outcome of this case will impact how a state can restrict the actions and language of merchants with respect to different forms of payments by consumers. 

Questions as Framed for the Court by the Parties

Whether New York’s regulation of the conditions under which sellers differentiate prices charged to consumers paying by credit card and consumers paying by other means, N.Y. Gen. Bus. Law § 518, is subject to scrutiny under, and consistent with, the First Amendment.

Whenever a consumer uses a credit card to make a purchase, the merchant is charged a swipe fee. Expressions Hair Design v. Schneiderman, 808 F.3d 118, 122 (2d Cir. 2015). Merchants typically pass on these charges to consumers through higher prices regardless of whether they pay by credit card or not.

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libel

Libel is a method of defamation expressed by print, writing, pictures, signs, effigies, or any communication embodied in physical form that is injurious to a person's reputation; exposes a person to public hatred, contempt or ridicule; or injures a person in their business or profession.

Lindke v. Freed

Issues

Can a public official’s social media activity constitute state action regardless of whether the official used the account to perform a governmental duty or exercise an authority of their office?

This case asks the Supreme Court to determine when, if ever, a politician may block someone from engaging with their social media posts. In this case, James Freed, a city manager, blocked Kevin Lindke from his personal Facebook page and removed Lindke’s comments criticizing Freed’s response to the COVID-19 pandemic. Lindke contends that, because Freed posted about his official duties on his private page, Freed acted as a state official on it and therefore infringed Lindke’s First Amendment rights by blocking him. Freed disagrees, arguing that because Freed blocked Lindke on his personal account rather than his official account, he was not acting as a state official. The Court’s decision could define the scope of politicians’ responsibilities as the use of personal social media for political activity becomes more popular.

Questions as Framed for the Court by the Parties

Whether a public official’s social media activity can constitute state action only if the official used the account to perform a governmental duty or under the authority of his or her office.

In 2014, James Freed became Port Huron, Michigan’s City Manager. Lindke v. Freed at 1. The city manager of Port Huron is responsible for issuing press releases about the city's policies and seeking input on them from citizens.

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Thompson v. United States

Issues

Does 18 U.S.C § 1014 criminalize the making of a true but misleading statement to federal agencies such as the Federal Deposit Insurance Corporation?

This case asks the Court to determine if 18 U.S.C. § 1014, which criminalizes the making of a false statement to influence federal agencies, also criminalizes true but misleading statements. Petitioner contends that the statute is limited to false statements. Respondent contends that section 1014 criminalizes any “false” statement, including misleading ones. This case touches upon important questions regarding the balancing act between protecting financial institutions from fraudulent acts and overexpansive criminal liability.

Questions as Framed for the Court by the Parties

Whether 18 U.S.C. § 1014, which prohibits making a “false statement” for the purpose of influencing certain financial institutions and federal agencies, also prohibits making a statement that is misleading but not false.

In pertinent part, 18 U.S.C. § 1014 criminalizes knowingly making false statements to a lending institution.

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Williams-Yulee v. Florida Bar

Issues

Does a Florida rule of judicial conduct that bars judicial candidates from personally soliciting campaign funds violate the candidates’ First Amendment right to freedom of speech?  

Court below

The Supreme Court will determine whether states may issue rules of judicial conduct that prohibit judicial candidates from personally soliciting campaign funds. Williams-Yulee contends that Canon 7C(1), a Florida rule of judicial conduct prohibiting judicial candidates from personally soliciting campaign funds, is unconstitutional because it restricts judicial candidates’ speech and fails strict scrutiny review since it is not narrowly tailored to serve a compelling state interest. The Florida Bar counters that the rule is constitutional because it serves the Florida’s interest in ensuring judicial impartiality and is narrowly tailored because candidates can exercise free speech and may raise funds through alternative means. The Supreme Court’s ruling in this case implicates the type of fundraising initiatives judicial candidates are permitted to take when running their campaigns. 

Questions as Framed for the Court by the Parties

Does a rule of judicial conduct that prohibits candidates for judicial office from personally soliciting campaign funds violate the First Amendment?

Lanell Williams-Yulee became a candidate for a Florida County Court Judgeship in September 2009. See Fla. Bar v. Williams-Yulee, 138 So. 3d 379, 381 (Fla. 2014).

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Additional Resources

•    Current and Recent Cases of Interest, Fair Courts Litigation Task Force.

•    Williams-Yulee v. The Florida Bar, Brennan Center for Justice (Oct. 23, 2014).

•    Adam Liptak: Judges on the Campaign Trail, The New York Times (Sept. 27, 2014). 

•    Greg Stohr: Judicial Campaign Solicitations Get Supreme Court Review, Bloomberg (Oct. 2, 2014).

•    Stephen Wermiel: SCOTUS for law students: Financing judicial elections, SCOTUS Blog (Dec. 23, 2014).

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