First Amendment Coalition

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Case No. 09-cv-01967 CW (NC)
SMRH:423016721.5
BRIEF OF AMICUS CURIAE FIRST AMENDMENT COALITION IN SUPPORT OF
DEFENDANT NCAAS MOTION TO CERTIFY PURSUANT TO 28 U.S.C. 1292(b)
SHEPPARD MULLIN RICHTER & HAMPTON LLP
KENT R. RAYGOR, Cal. Bar No. 117224
VALERIE E. ALTER, Cal. Bar No. 239905
1901 Avenue of the Stars, Suite 1600
Los Angeles, California 90067-6055
Telephone: (310) 228-3700
Facsimile: (310) 228-3701
Email: kraygor@sheppardmullin.com
valter@sheppardmullin.com

Attorneys for Amicus Curiae
FIRST AMENDMENT COALITION

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
OAKLAND DIVISION

In re NCAA Student-Athlete Name &
Likeness Licensing Litigation


BRIEF OF AMICUS CURIAE FIRST
AMENDMENT COALITION IN
SUPPORT OF DEFENDANT NCAAS
28 U.S.C. 1292(b) MOTION TO
CERTIFY COURTS MAY 11, 2014
ORDER RESOLVING CROSS
MOTIONS FOR SUMMARY
JUDGMENT

J udge: Honorable Claudia Wilken
Date: J une 5, 2014
Time: 2:00 p.m.
Crtrm.: 2, 4th Floor

Exhibit A, Page 4
Case4:09-cv-01967-CW Document1042-1 Filed05/02/14 Page1 of 16
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SMRH:423016721.5
TABLE OF CONTENTS
Page
I. INTRODUCTION .............................................................................................................. 1
II. INTEREST OF FIRST AMENDMENT COALITION .................................................... 1
III. THE COURT SHOULD CERTIFY ITS SUMMARY J UDGMENT ORDER FOR
INTERLOCUTORY APPEAL PURSUANT TO 28 U.S.C. 1292(b) .................... 2
A. Standard For Granting Certification Pursuant To Section 1292(b)................. 2
B. The Summary J udgment Order Involves Controlling Questions Of First
Amendment Law. ............................................................................................ 4
C. Interlocutory Appeal Is Appropriate For Controlling First Amendment
Issues That Are Novel, Complex And In Need Of Early Resolution. ............ 5
D. Certification Pursuant To Section 1292(b) Is Especially Warranted Due
To The Chaotic Conditions That Will Be Caused By Implementation Of
The Courts Summary J udgment Order. ......................................................... 8
IV. CONCLUSION ............................................................................................................. 12

Exhibit A, Page 5
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TABLE OF AUTHORITIES
Page(s)
Cases
American-Arab Anti-Discrimination Committee v. Reno
70 F.3d 1045 (9th Cir. 1995) ................................................................................................... 12
Arizona v. Ideal Basic Industries (In re Cement Antitrust Litigation)
673 F.2d 1020 (9th Cir. 1982) ................................................................................................... 3
Baker & Getty Financial Services, Inc. v. National Union Fire Insurance Company
954 F.2d 1169 (6th Cir. 1992) ................................................................................................... 2
Batt v. City of Oakland
2006 U.S. Dist. LEXIS 77087 (N.D. Cal. Oct. 11, 2006) ......................................................... 5
Citizens United v. Federal Election Commission
558 U.S. 310 (2010) ................................................................................................................ 11
Couch v. Telescope Inc.
611 F.3d 629 (9th Cir. 2010) ................................................................................................. 3, 8
Dombrowski v. Pfister
380 U.S. 479 (1965) ................................................................................................................ 11
Elrod v. Burns
427 U.S. 347 (1976) ................................................................................................................ 12
Kuehner v. Dickinson & Co.
84 F.3d 316 (9th Cir. 1996) ....................................................................................................... 2
New York Times v. Sullivan
376 U.S. 254 (1964) ................................................................................................................ 11
Reese v. BP Exploration (Alaska) Inc.
643 F.3d 681 (9th Cir. 2011) ................................................................................................. 3, 8
Union Carbide Corp. v. U.S. Cutting Serv., Inc.
782 F.2d 710 (7th Cir. 1986) ................................................................................................... 12
United States v. Real Property & Improvements Located at 2441 Mission Street
2014 U.S. Dist. LEXIS 47135 (N.D. Cal. April 4, 2014) ......................................................... 3
Washington Post Co. v. Keogh
365 F.2d 965 (D.C. Cir. 1966) ................................................................................................ 12
Yeager v. Cingular Wireless, LLC
2010 U.S. Dist. LEXIS 35954 (E.D. Cal. Mar. 12, 2010) ......................................................... 3
Exhibit A, Page 6
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TABLE OF AUTHORITIES
(continued)
Page(s)
Zacchini v. Scripps-Howard Broadcasting Co.
433 U.S. 562 (1977) ...................................................................................................... 5, 6, 7, 8
Statutes
28 U.S.C. 1292(b) ...................................................................................................... 2, 3, 5, 8, 12

Exhibit A, Page 7
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I.
INTRODUCTION

Amicus curiae the First Amendment Coalition submits this amicus brief in support of
NCAAs motion for certify the Court's April 11, 2014 Order Resolving Cross-Motions For
Summary Judgment (ECF Doc. No. 1025) ("Summary Judgment Order") for interlocutory review.
First Amendment Coalition specifically addresses the potentially catastrophic First Amendment
implications of the Summary J udgment Order.

In denying NCAA a First Amendment defense to plaintiffs Sherman Act claim, the Court
assumed in Footnote 10 of the Summary J udgment Order that no individual student-athlete would
be able to prevent a broadcaster from televising his teams games merely by withholding his
consent, and that individual student-athletes would have to transfer their rights of publicity to
some representative entity. Respectfully, there is no basis for these assumptions, and it is likely, if
not certain, that student-athletes will be free to negotiate individually for publicity rights.

The uncertainty created by such a scenariodo broadcasters have the right to televise a
particular game, or do they not?will cause the NCAA, networks, and associated businesses to
censor their protected speech. Such self-censorship is anathema to the First Amendment, and must
be addressed as early as possible. Given the gravity of the First Amendment issues at stake, First
Amendment Coalition respectfully requests that the Court certify the Summary J udgment Order for
interlocutory review.
II.
INTEREST OF FIRST AMENDMENT COALITION

Amicus curiae the First Amendment Coalition is a nonprofit organization dedicated to First
Amendment freedoms and government transparency. The exercise of these rightsthe right to
know what government is doing, to criticize government policy, and to hold elected officials
Exhibit A, Page 8
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accountable for their actions (or inaction)is essential to a self-governing democracy that serves the
public interest (rather than special interests).

The First Amendment Coalition, founded in 1988, works to protect these rights through
multiple programs, including a free legal consultation service, educational and information services,
and public advocacy. When necessary, the First Amendment Coalition also goes to court, filing
test-case litigation in its own name and filing amicus briefs in cases raising important First
Amendment and government-access issues, such as the instant litigation. The First Amendment
Coalition receives funding from contributions, foundation grants, and members. The organization's
offices are in San Rafael, California.

III.
THE COURT SHOULD CERTIFY ITS SUMMARY JUDGMENT ORDER FOR
INTERLOCUTORY APPEAL PURSUANT TO 28 U.S.C. 1292(b)

A. Standard For Granting Certification Pursuant To Section 1292(b).

A district court may certify an order for interlocutory review when:
. . .[A] district judge, in making in a civil action an order not otherwise appealable
under this section, shall be of the opinion that such order involves a controlling
question of law as to which there is substantial ground for difference of opinion and
that an immediate appeal from the order may materially advance the ultimate
termination of the litigation, he shall so state in writing in such order.
28 U.S.C. 1292(b) (emphasis added).

The question (or questions) of law posed by the case need not be dispositive to qualify as
controlling. See Kuehner v. Dickinson & Co., 84 F.3d 316, 319 (9th Cir. 1996). Rather, an issue is
controlling where the resolution of an issue . . . on appeal could materially affect the outcome of
the litigation in the district court. Baker & Getty Financial Services, Inc. v. National Union Fire
Insurance Company, 954 F.2d 1169, 1172 n.8 (6th Cir. 1992) (internal quotation marks and citations
Exhibit A, Page 9
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omitted). See also Arizona v. Ideal Basic Industries (In re Cement Antitrust Litigation), 673 F.2d
1020, 1026 (9th Cir. 1982) ([A]ll that must be shown in order for a question to be controlling is
that resolution of the issue on appeal could materially affect the outcome of litigation in the district
court.).

To determine if a substantial ground for difference of opinion exists under 1292(b),
courts must examine to what extent the controlling law is unclear. Couch v. Telescope Inc., 611
F.3d 629, 633 (9th Cir. 2010). The controlling law is unclear where the circuits are in dispute on
the question and the court of appeals of the circuit has not spoken on the point, if complicated
questions arise under foreign law, or if novel and difficult questions of first impression are
presented. Id. Moreover, [a] substantial ground for difference of opinion exists where reasonable
jurists might disagree on an issues resolution, not merely where they have already disagreed.
Reese v. BP Exploration (Alaska) Inc., 643 F.3d 681, 688 (9th Cir. 2011).

The final consideration is whether an interlocutory appeal will materially advance the
ultimate termination of the litigation. This is closely related to the question of whether an issue of
law is controlling in that the [district court] should consider the effect of a reversal . . . on the
management of the case. United States v. Real Property & Improvements Located at 2441 Mission
Street, 2014 U.S. Dist. LEXIS 47135 at *12 (N.D. Cal. April 4, 2014) (internal quotations omitted).
See also Yeager v. Cingular Wireless, LLC, 2010 U.S. Dist. LEXIS 35954 (E.D. Cal. Mar. 12, 2010)
(same).

In the First Amendment Coalitions view, the First Amendment stands as a bar to the Courts
summary judgment decision regardless of whether the (federal) antitrust or (state) right-of-publicity
issues have been correctly decided. The First Amendment is a legally discrete and controlling issue
that, with all respect, the Court got wrong. Because the First Amendment issue satisfies all the
requirements of Rule 1292(b), and because the ongoing harm to First Amendment interests uniquely
Exhibit A, Page 10
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counsels in favor of the earliest possible judicial resolution, the Court should certify its Summary
J udgment Order for interlocutory review.

B. The Summary Judgment Order Involves Controlling Questions Of First Amendment
Law.

NCAA and amici (Fox Broadcasting Company and Big Ten Network, LLC) have
argued that plaintiffs cannot establish a violation of Section 1 of the Sherman Act without
first showing that NCAAs amateur play rules operate to prevent them from selling things
of valueso-called publicity or NIL (name, image, likeness) rightsthat are, legally
speaking, theirs to sell. Although the First Amendment Coalition takes no position on
whether the plaintiffs, or some of them, have legally cognizable property rightsand further
abstains on the question whether NCAAs practices with respect to those rights constitute an
antitrust violationthe First Amendment Coalition agrees with NCAA that it is plaintiffs
burden to show that the plaintiffs possess these rights.

The First Amendment clearly allocates this burden to plaintiffs, not NCAA. Whatever ones
view of the merits of NCAAs First Amendment arguments, there can be no question that a decision
recognizing or conferring NIL interests on plaintiffs implicatesand in a serious and direct way
the First Amendment. It implicates the First Amendment rights of television networks, cable
companies, radio stations and many others. Under the best of circumstances, they will, going
forward, face the legal uncertainty of indeterminate tort liability for the programming they produce,
while millions of viewers (whose First Amendment rights are also implicated), as a result, will
likely have to pay more money for less complete coverage of fewer NCAA games.

These are not trivial consequences, as discussed further below. And before they can be set in
motion by this Court, plaintiffs at the very least have to meet their burden of showing that the
Exhibit A, Page 11
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publicity rights in question exist under the common law and statutory law of the relevant states.
1
If
it turns out that the rights do not exist, the predicate for plaintiffs antitrust claims collapses.
2
More
important for amicus purposes, the First Amendment argument must prevail because, by
hypothesis, there will be no interests on plaintiffs side of the constitutional scale to balance against
the substantial First Amendment interests.

The First Amendment issue is front, center and controlling in this case. The Court should
certify its summary judgment ruling for interlocutory appeal so that the issue can be resolved now.
See Batt v. City of Oakland, 2006 U.S. Dist. LEXIS 77087 at *7 (N.D. Cal. Oct. 11, 2006)
(Summary judgment has been held in this Circuit to be a controlling question of law under section
1292(b); thus, a controlling question of law has been raised.).

C. Interlocutory Appeal Is Appropriate For Controlling First Amendment Issues That
Are Novel, Complex And In Need Of Early Resolution.

Even if plaintiffs have legally cognizable state law causes of action for rights of publicity,
the Supreme Courts decision in Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562
(1977), does not remove constitutional obstacles to plaintiffs hypothetical claims. In Zacchini the
Supreme Court sustained, over a First Amendment challenge, Hugo Zacchinis suit against a
television station that had filmed and broadcast all of his fifteen-second human cannonball act
performed at a state fair. 433 U.S. at 563. The Court stressed that the news broadcast had shown
Mr. Zacchinis entire act, id. at 574, and thereby greatly diminished its value. Wherever the line
in particular situations is to be drawn between media reports that are protected and those that are

1
The Court, of course, has no power to create rights-of-publicity. They are purely a function of
state law, whether judge-made common law or statutory law.
2
Indeed, if plaintiffs cannot show that they possess legally cognizable publicity rights under state
law, it is at least arguable that this dispute would no longer present a case or controversy
permitting the continued exercise of the Courts jurisdiction.
Exhibit A, Page 12
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not, the Court said, id. at 575, we are quite sure that the First and Fourteenth Amendments do not
immunize the media when they broadcast a performer's entire act without his consent. Id.

The NCAA performances to which the team players asserted publicity rights would apply
are at the opposite end of the spectrum from Zacchini. Mr. Zacchinis human cannonball was the
same performance throughout the day, day after day. The filming and broadcast of that performance
was the equivalent of copying and reselling a copyrighted song, or republishing verbatim another
authors article. NCAA basketball and football games, by contrast, are never the same. Every game
is different (even when they involve the same teams competing in the same venue with the same
lineup of players). Within any single game, each play differs from the one that preceded it, as does
each players execution of his/her assigned role. Excellence in football and basketball is not about
perfecting and repeating the same performance in a static setting, but about adapting ones
performance to constantly shifting circumstances and pressures. Basketball and football emphasize
change, risk and unpredictability. In contrast to the human cannonball, NCAA games do not offer a
script or act that can be taken entirely.

Moreover, the value of college team sports is not merely the sum of the parts represented by
the contributions of individual players on a teams current roster. On the contrary, the value of
college sporting contests derives from myriad factors, including the schools involved, their histories,
their alumni (and the role of the alumni in the larger community), as well as the records and
historical performances of all NCAA teams. An additional factor, which exists independently of a
teams membership in any given year, is the historical rivalry between schools. For example, the
rivalry between the University of North Carolina Tar Heels and the Duke University Blue Devils,
which has been called the most intense rivalry in college basketball (see
http://bleacherreport.com/articles/1985145-how-duke-vs-unc-became-the-best-rivalry-in-college-
Exhibit A, Page 13
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basketball), dates back more than fifty years and has taken on a significance (and economic value)
that transcends the athletic competition between teams.
3

While the value of the individual cannonball act in Zacchini may have been the product of
[the performers] own talents and energy, the same cannot be said of individual student athletes
playing within the context of a sports team that may have decades of storied rivalries, history, and
varying levels of interaction with the college and broader communities.

Finally, unlike the situation in Zacchini, there is no claim here that plaintiffs hypothetical
publicity rights would be diminished if the public could see their group athletic contests on
television. On the contrary, NCAA games are watched by millions.
4
Assuming for the moment that
plaintiffs do have legally protectable publicity rights, those rights are greatly enhanced by the
exposure, public awareness and acclaim created by television coverage reaching a mass audience.
One example: players who, under the Courts decision, would be in a position to contract for the
endorsement of products. Clearly, the value (to the players) of an endorsement deal is hardly
diminished by the televising of games; the value is created and greatly enhanced through television
exposure.

Even if state law does provide plaintiffs with legally cognizable publicity rights in their
college football and basketball performances, it is by no means clear that players interests in

3
The Duke-Carolina rivalry . . . has cultivated a maniacal subculture of fans who camp out for
weeks just to get tickets to the seasonal match-ups; it has enchanted a nation of spectators to watch
games between the archrivalsgarnering some of the highest regular-season TV ratings in history.
Art Chansky, Blue Blood: Duke-Carolina: Inside the Most Storied Rivalry in College Hoops
(Macmillan 2007) (publishers summary on the cover).
4
More than twenty million people watched both this years NCAA mens basketball national
championship and football national championship. See, e.g.,
http://www.forbes.com/sites/tomvanriper/2014/03/20/march-madness-ratings-and-revenue-keep-
reaching-new-heights/. Tickets for the NCAA mens Final Four games were sold out on the primary
market, and were selling for at least $135 over face value on the secondary market (see
http://www.usatoday.com/story/news/nation-now/2014/04/01/final-four-tickets-basketball-
ncaa/7152605/).

Exhibit A, Page 14
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asserting those rights through litigation necessarily outweighs the First Amendment interests of
NCAA, broadcasters and other businesses involved in the airing of NCAA games, and of the
massive national audience of viewers.
5
While amicus believes this calculusthe calculus
prescribed by Zacchiniin fact favors First Amendment interests, the Court need not go that far to
certify this case under section 1292(b). The Court need only determine that the First Amendment
issues present novel and difficult questions of first impression, Couch, 611 F.3d at 633, about
which reasonable jurists might disagree, Reese, 643 F.3d at 688. That standard is certainly met
here.
D. Certification Pursuant To Section 1292(b) Is Especially Warranted Due To The
Chaotic Conditions That Will Be Caused By Implementation Of The Courts Summary
Judgment Order.

This Courts summary judgment decision poses a serious threat to freedom of speech. That
threat is reflected less in the Courts analysis of First Amendment issues than in the way the Courts
decision will be implemented in the real world. Huge uncertainty about the mechanism for
implementation, combined with the risk of substantial liability for guessing wrong about how to
comply with the Courts order, will deter protected expression on matters of public interest. This
likelihoodno, this certaintyof self-censorship is, in amicus view, the most important reason to
certify the summary judgment decision for interlocutory appeal.

First Amendment Coalitions argument focuses on footnote 10 of the Summary J udgment
Order, which states:

5
Wisconsin Interscholastic, cited by plaintiffs, does not change this conclusion. In Wisconsin
Interscholastic, the Seventh Circuit considered whether the First Amendment prevented the
Wisconsin Interscholastic Athletic Association (WIAA), a nonprofit state actor, from applying its
Media Policies, which granted certain private entities exclusive broadcast rights, including
internet streaming, to middle school and high school athletic events. On appeal, the only issue
presented concerns the First Amendment as it might apply to WIAAs internet streaming rules. Id.
at 616. In other words, the case did not even concern a right of publicity issue.

Exhibit A, Page 15
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This is not to suggest that any individual student-athlete would be able to prevent a
broadcaster from televising his teams games merely by withholding his consent. To
create a group licensing market such as the one that Plaintiffs have identified,
individual student-athletes would have to transfer their rights of publicity to some
representative entitysuch as their school or conferenceas a condition of their
participation in Division I athletics so that the representative entity could license the
right to televise their games. Thus, broadcasters would obtain group licenses to use
every participating student-athletes name, image, and likeness as part of the general
licenses they would acquire from every school or conference whose games they
wished to broadcast.
(ECF Doc. No. 1025, at 26:22-28.)

Regrettably, there is no basis for the Courts confidence in a smooth transition to a legal
regime of group-licensing for publicity rights which inhere separately in each player on an NCAA
team. On the contrary, there is every reason to expect that the transition will be chaotic and that free
speech will be the first casualty of that chaos.

There is no mechanism for requiring NCAA team members, once they are vested
individually in state law publicity and NIL rights pursuant to the Courts decision, to negotiate and
agree collectively, on a group-basis, on terms for licensing their rights to broadcast networks and
others. The Court speculates that the college or athletic conference could function as an agent for all
student-athletes for this purpose. But consider:

The students collective agreement to appoint the college or conference as sole
agent for all the players would be subject to challenge as unlawful collusion and
price-fixing under the federal antitrust laws.

The Courts alternate suggestionconditioning students participation in NCAA
athletics on their cooperating in group-based licensing of NIL rightswould also
raise a red flag at the Federal Trade Commission. Having been sued for
prohibiting students from enforcing their publicity rights, the NCAA would be
Exhibit A, Page 16
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reluctant (to put it mildly) to use its alleged monopoly power to force athletes to
grant licenses to those rights.

Because neither requiring nor inducing the creation of a group licensing market are
plausible options, what will happen? The default outcome will be a competitive non-group market
in which all student-athletes will be free to negotiate an individual publicity rights license at the best
terms they can get, based on their value to the team (real and perceived), the profits generated by the
teams games, how much broadcasters are willing to pay in fees, and the willingness of colleges to
share proceeds with players.

This also means that some players who think they have leverage to extract concessions will
simply refuse to sign a license agreement, holding out for better terms. In other words, a single
dissenting student, despite the Courts assurance to the contrary, would be able to prevent a
broadcaster from televising his teams games merely by withholding his consent.

This scenario is a First Amendment nightmare because the massive uncertainty flowing from
a judicial decree will cause those engaged in protected expressionNCAA, networks and associated
businessesto censor themselves. Unsure of the consequences of directing and airing sports events
without all necessary licenses, they will cancel some while refraining to commit to other future
games where they anticipate similar problems. This is self-censorship. In other cases broadcasters
will proceed to televise a sports event, but change their production techniques and deployment of
cameras to avoid showing the unconsenting players. This too is self-censorship.

Nor are these problems confined to NCAA games. The logic of the Courts decision
certainly extends to all other sports, whether professional, collegiate or high school level, from the
Olympic games to a Little League baseball championship. And there is no principled reason why
publicity rights should be recognized only for athletes. Coaches, trainers, cheerleaders, and all other
Exhibit A, Page 17
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personnel involved in public aspects of major sporting events will also be emboldened to assert NIL
rights.

Although the application of the decision to news events outside the sports arena is less clear,
there is definitely a risk of such an extensionand no way to eliminate that risk short of costly
litigation. The Courts summary judgment decision opens the door to the possibility that television
journalists reporting on a street demonstration, natural disaster, news conference or public school
shooting will be forced to chase down all persons appearing on camera for their signatures on legal
consent forms. Subjects who withhold consent undoubtedly will cause some news segments to be
held or canceled. Other subjects may condition their consent, trying to use their leverage to
influence the way a news segment is edited.

The First Amendment weighs heavily against government decrees or rules that, due to
ambiguities and uncertainties about their meaning or scope, have the effect of deterring protected
expression. See Dombrowski v. Pfister, 380 U.S. 479, 487 (1965); Citizens United v. Federal
Election Commission, 558 U.S. 310, 330-33 (2010). This is true even when, as here, the chilling
effect derives from the liability risk of state tort law. See New York Times v. Sullivan, 376 U.S. 254
(1964).

The implementation of the Courts decision will be nothing like what the Court envisions.
Because antitrust concerns will prevent the emergence of a market for group-licensing of publicity
rights, individual athletes will have the power, by withholding consent, to force the cancellation of a
sports event broadcast. Under First Amendment first principles, this is an intolerable outcome.

With so much at stake, it is imperative that the Court of Appeals address and resolve the
First Amendment issues at this juncture, not months or years from now following a full trial. While
the loss of First Amendment freedoms, for even minimal periods of time, unquestionably
Exhibit A, Page 18
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-12-
SMRH:423016721.5
constitutes irreparable injury, Elrod v. Burns, 427 U.S. 347, 373 (1976),
6
this Courts decision sets
in motion a dynamic that will cause more and more self-censorshipand, as a result, an expanding
toll on core First Amendment rightsover time.

This case cries out for section 1292(b) certification.

IV.
CONCLUSION
For the reasons above, amicus curiae First Amendment Coalition respectfully requests that
the Court certify its Summary J udgment Order for appellate review pursuant to section 1292(b).

Dated: May 2, 2014 SHEPPARD MULLIN RICHTER & HAMPTON LLP
KENT R. RAYGOR
VALERIE E. ALTER

By s/ Kent R. Raygor
KENT R. RAYGOR

Attorneys for Amicus Curiae
FIRST AMENDMENT COALITION

423016721.2

6
See also American-Arab Anti-Discrimination Committee v. Reno, 70 F.3d 1045, 1057-58 (9th Cir.
1995) (the duration of trial is an intolerably long period to permit the continuing impairment of
First Amendment rights, thereby entitling a plaintiff to immediate injunctive relief); Union Carbide
Corp. v. U.S. Cutting Serv., Inc., 782 F.2d 710, 712 (7th Cir. 1986) ([I]n free-speech cases
interlocutory appeals sometimes are more freely allowed, and writs of mandamus sometimes more
freely issued, than in other types of case [sic], especially where the interlocutory order can be
characterized as imposing a prior restraint on speech or the press.); Washington Post Co. v.
Keogh, 365 F.2d 965, 968 (D.C. Cir. 1966) (In the First Amendment area, summary procedures are
even more essential. For the stake here, if harassment succeeds, is free debate.).
Exhibit A, Page 19

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