“The Post, which opens tonight, is a good movie but bad history. It exaggerates the role of The Washington Post in the success of the publication of the Pentagon Papers and the subsequent Supreme Court case. It downplays the role of the true catalyst in the real life drama: The New York Times. Kay Graham and Ben Bradlee, who were good friends of mine, must be rolling over in their graves laughing at the roles Hollywood has given them.”
Thus begins James Goodale’sop-ed in The Daily Beast. Recall, that Mr. Goodale was the former vice president and general counsel for The New York Times and, later, the Times’ vice chairman. It has been reported that Goodale was “the leading force behind the Times’ decision to publish the Pentagon Papers in 1971.” He is also the author of Fighting for the Press: The Inside Story of the Pentagon Papers and Other Battles (2013). In other words, he is someone quite familiar with the real story of the Pentagon Papers episode.
The Post, adds Goodale, “is about Katherine Graham’s decision to publish the Pentagon Papers. It creates a false impression that the Post was a major player in such publication. It’s as though Hollywood had made a movie about the Times’ triumphant role in Watergate. In fact, the Post had as much to do with the Pentagon Papers as the Times did with Watergate. But then again, we don’t look to Hollywood for history but entertainment, and The Post is good entertainment at the Academy Award level. . . .”
“While The Washington Post gets the lion’s share of the glory in the movie, it was the Times that did the vast majority of the hard work and took on far more risk in publishing the Pentagon Papers.”
Goodale closes his op-ed with this observation: “The Times eventually won the Pulitzer Prize. It did not share this prize with the Post any more than the Post shared its prize for its Watergate coverage with the Times. For Hollywood now to create the impression that The Washington Post was the key driver responsible for the publication of the Pentagon Papers or the case is—well, it’s Hollywood: good drama but bad history.”
Vanderbilt University Law School seeks applicants for a full-time clinical faculty position. The successful applicant will design and direct a First Amendment Clinic focused on speech, press, and assembly rights. In addition to teaching a live-client clinic, the successful applicant will also have the opportunity to teach a non-clinical course and to engage in writing as well as community and professional service.
The First Amendment Clinic is funded for an initial five-year period, after which continuation is contingent on securing additional funding.
→ Please send a cover letter, resume, clinic proposal/research agenda, and list of references to:
http://apply.interfolio.com/48179
→ This from an e-mail from Professor Terry A. Maroney: Under the TN student practice rule, clinic representation is limited to persons or entities who cannot otherwise obtain counsel – so, as a general matter, this would be focused on speech, assembly, and press claims raised by poor persons, children (e.g., expression rights at school), and community organizations. Our ideal candidate is someone with a passion for free speech, meaningful litigation experience, and direct experience in teaching and mentoring law students. Other than the soft-money aspect, we anticipate that the First Amendment clinical professor would enjoy the same benefits of all our other clinical professors (e.g., non-tenure-track, with term contracts, but eligible for promotion from Assistant to Associate to full). Salary is competitive with our entry-level clinical range. I am hoping to identify someone to start this summer in anticipation of being in place for the new school year.
The final candidate for this position must successfully complete a background check. Vanderbilt University has a strong institutional commitment to recruiting and retaining an academically and culturally diverse community of faculty. Minorities, women, individuals with disabilities, and members of other underrepresented groups, in particular, are encouraged to apply. Vanderbilt is an Equal Opportunity/Affirmative Action employer.
A comprehensive and accurate description of the powers of the President of the United States. The book is intended primarily to benefit non-lawyers in understanding the sources and limits of the President’s powers, and their means of influencing his actions, but the work will be enlightening for lawyers as well.
— Justice John Paul Stevens (ret.)
Both a primer and a sophisticated analysis of the constantly evolving balance of power between the President, the Congress, and the Judiciary.
“This one-of-a-kind guide provides a crash course in the laws governing the President of the United States. In engaging and accessible prose, two law professors explain the principles that inform everything from President Washington’s disagreements with Congress to President Trump’s struggles with the courts, and more. Timely and to the point, this guide provides the essential information every informed civic participant needs to know about the laws that govern the president–and what those laws mean for those who want to make their voices heard.”
* * * *
I’ve read this book. It is a quite accessible and highly reliable overview of the law of presidential power. Here is some of the advance buzz about the book:
This smart and indispensable guide begins where old-fashioned civics leaves off, and talks to troubled and puzzled Americans as adults. The authors demonstrate that the future of our democracy is where it’s always been: in our hands, if only we learn how to invoke the available limits on the power of the president. –– Linda Greenhouse
Prof. Lisa Manheim
Lisa Manheim and Kathryn Watts have written a wonderful book on presidential power, its scope, and its limits. The book is clearly written and easily accessible and is terrific in explaining the authority of the President and the checks on his power. The book is especially timely now, but it is about issues that have arisen since the beginning of the country and that will last as long as the Constitution. — Erwin Chemerinsky
The authors have provided a truly impressive chapter on climate change that is both sweeping and compelling, and have done so with crystal clarity and gripping narrative drive. As a result, the climate change chapter, like the rest of this book, offers every reader not only a ready understanding of a vital and complex issue and of the varying roles the government has played in shaping the issue, but also of the opportunity–for better or worse–that stakeholders and members of the public have to shape U.S. climate change policy going forward. If this is the only piece on climate change policy that a person reads, then he or she will be very well-informed and well-equipped to engage with the issue. — Joseph Goffman
Prof. Kathryn Watts
A concise and crisp primer on the limitations of presidential power. The subject is timely and well worth pondering. This work should interest students concerned with law and the separation of powers and American politics, as well as the general public. — David M. O’Brien
In America, no one is above the law, not even the president. For anyone who has ever wondered ‘can he really do that?’ this clear and concise book on presidential power is a must read. Likewise, for everyone who cares about democracy and the rule of law, Watts and Manheim are your best guides to effective citizenship. — Kellye Testy
Accessible and interesting, this book is a must-read for anyone who wants to understand both the powers of the presidency and the limits on presidential power.— Brianne Gorod
According to the most famous words of the First Amendment, “Congress shall make no law . . . abridging the freedom of speech.” But what did the founders understand those words to mean? A remarkable answer comes from Jud Campbell, a University of Richmond law professor, who has just produced what might well be the most illuminating work on the original understanding of free speech in a generation. In brief, Campbell argues that the founders meant to protect a lot less speech than most of us think.
History forever haunts us. Even if it did not, there is always that temptation to look into the rear-view mirror to catch a fleeting glimpse of the world of the dead. Even some of the great who wrote about the dead are themselves now dead. Remember this constitutional historian?
Of course, there is more, much more. That said, there’s a new player in the First-Amendment-history town; he is Professor Jud Campbell and he has an impressive new article in the Yale Law Journal. It is titled
ABSTRACT. The Supreme Court often claims that the First Amendment reflects an original judgment about the proper scope of expressive freedom. After a century of academic debate, however, the meanings of speech and press freedoms at the Founding remain remarkably hazy. Many scholars, often pointing to Founding Era sedition prosecutions, emphasize the limited scope of these rights. Others focus on the libertarian ideas that helped shape opposition to the Sedition Act of 1798. Still more claim that speech and press freedoms lacked any commonly accepted meaning. The relationship between speech and press freedoms is contested, too. Most scholars view these freedoms as equivalent, together enshrining a freedom of expression. But others assert that the freedom of speech, unlike press freedom, emerged from the legislative privilege of speech and debate, thus providing more robust protection for political speech.
Professor Jud Campbell
This Article argues that Founding Era elites shared certain understandings of speech and press freedoms, as concepts, even when they divided over how to apply those concepts. In particular, their approach to expressive freedom was grounded in a multifaceted understanding of natural rights that no longer survives in American constitutional thought. Speech and press freedoms referred, in part, to natural rights that were expansive in scope but weak in their legal effect, allowing for restrictions of expression to promote the public good. In this respect, speech and press freedoms were equivalent concepts with highly contestable implications that depended on calculations of the public good. But expressive freedom connoted more determinate legal protections as well. The liberty of the press, for instance, often referred specifically to the rule against press licensing, while the freedom of speaking, writing, and publishing ensured that well-intentioned statements of one’s views were immune from governmental regulation. In this respect, speech and press freedoms carried distinct meanings. Much of our modern confusion stems from how the Founders—immersed in their own constitutional language—silently shifted between these complementary frames of reference.
This framework significantly reorients our understanding of the history of speech and press freedoms by recognizing the multifaceted meanings of these concepts, and it raises challenging questions about how we might use that history today. Various interpretive theories—including ones described as “originalist”—might incorporate this history in diverse ways, with potentially dramatic implications for a host of First Amendment controversies. Most fundamentally, however, history undercuts the Supreme Court’s recent insistence that the axioms of modern doctrine inhere in the Speech Clause itself, with judges merely discovering—not crafting—the First Amendment’s contours and boundaries.
→ Nico Perrino over at FIRE interviews Professor Campbell in a So to Speakpodcast
Newly Posted Historial Documents
Over at First Amendment Watch Professor Stephen Solomon and his crew are busy posting a variety of historical documents as part of the History Speaks series. Some of the recent postings include:
“The Post” is a well-crafted, old-school newspaper drama with a timely message about the crucial role of a fearless free press. But it misses the chance to rediscover a forgotten First Amendment hero—the late Judge Murray I. Gurfein. . . .
The movie does Judge Gurfein a disservice by mentioning only the TRO and omitting his bold First Amendment ruling. Judge Gurfein was not the only judge to do the right thing here, but he led the way—standing up, in his first week on the job, to the president who had just appointed him. It was an act of political courage that still inspires today, with our independent judiciary as besieged as our free press.
So munch your popcorn and cheer Kay Graham and Ben Bradlee, but don’t forget the bit players who also deserve applause—including a lone rookie judge with the intellectual honesty and political guts to say “no” to authoritarian power. We need more like him today.
Abstract: Free speech and freedom of the press were often suppressed amid the social turbulence of the Progressive Era and World War I. As muckrakers, feminists, pacifists, anarchists, socialists, and communists were arrested or censored for their outspoken views, many of them turned to a Manhattan lawyer named Gilbert Roe to keep them in business and out of jail.
Roe was the principal trial lawyer of the Free Speech League—a precursor of the American Civil Liberties Union. His cases involved such activists as Emma Goldman, Lincoln Steffens, Margaret Sanger, Max Eastman, Upton Sinclair, John Reed, and Eugene Debs, as well as the socialist magazine The Masses and the New York City Teachers Union. A friend of Wisconsin’s progressive senator Robert La Follette since their law partnership as young men, Roe defended “Fighting Bob” when the Senate tried to expel him for opposing America’s entry into World War I.
In articulating and upholding Americans’ fundamental right to free expression against charges of obscenity, libel, espionage, sedition, or conspiracy during turbulent times, Roe was rarely successful in the courts. But his battles illuminate the evolution of free speech doctrine and practice in an era when it was under heavy assault. His greatest victory, including the 1917 decision by Judge Learned Hand in The Masses Publishing Co. v. Patten, is still influential today.
Abstract: Anthony Comstock was America’s first professional censor. From 1873 to 1915, as Secretary of the New York Society for the Suppression of Vice, Comstock led a spirited crusade against lasciviousness, salaciousness, and obscenity that resulted in the confiscation and incineration of more than three million pictures, postcards, and books he personally judged to be obscene. But as Amy Werbel shows in this rich cultural and social history, Comstock’s campaign to rid America of vice in fact led to greater acceptance of the materials he deemed objectionable, offering a cautionary tale about the unintended consequences of censorship.
In Lust on Trial, Werbel provides a detailed and colorful journey through Comstock’s career that doubles as a new history of post-Civil War America’s risqué visual and sexual culture. Born into a puritanical New England community, Anthony Comstock moved to New York in 1868 armed with his Christian faith and a burning desire to rid the city of vice. Werbel describes how Comstock’s raids shaped New York City and American culture through his obsession with the prevention of lust by means of censorship, and how his restrictions provided an impetus for the increased circulation and explicitness of “obscene” materials. By opposing women who preached sexual liberation and empowerment, suppressing contraceptives, and restricting artistic expression, Comstock drew the ire of civil liberties advocates, inspiring more open attitudes toward sexual and creative freedom and more sophisticated legal defenses. Drawing on material culture high and low, courtroom transcripts, and numerous examples of the “obscenities” Comstock seized, Lust on Trial provides fresh insights into Comstock’s actions and motivations, the sexual habits of Americans during his era, and the complicated relationship between law and cultural change.
Mr. President, near the beginning of the document that made us free, our Declaration of Independence, Thomas Jefferson wrote: “We hold these truths to be self-evident…” So, from our very beginnings, our freedom has been predicated on truth. The founders were visionary in this regard, understanding well that good faith and shared facts between the governed and the government would be the very basis of this ongoing idea of America.
Senator Jeff Flake (C-SPAN)
As the distinguished former member of this body, Daniel Patrick Moynihan of New York, famously said: “Everyone is entitled to his own opinion, but not to his own facts.” During the past year, I am alarmed to say that Senator Moynihan’s proposition has likely been tested more severely than at any time in our history.
It is for that reason that I rise today, to talk about the truth, and its relationship to democracy. For without truth, and a principled fidelity to truth and to shared facts, Mr. President, our democracy will not last.
2017 was a year which saw the truth – objective, empirical, evidence-based truth — more battered and abused than any other in the history of our country, at the hands of the most powerful figure in our government. It was a year which saw the White House enshrine “alternative facts” into the American lexicon, as justification for what used to be known simply as good old-fashioned falsehoods. It was the year in which an unrelenting daily assault on the constitutionally-protected free press was launched by that same White House, an assault that is as unprecedented as it is unwarranted. “The enemy of the people,” was what the president of the United States called the free press in 2017.
Mr. President, it is a testament to the condition of our democracy that our own president uses words infamously spoken by Josef Stalin to describe his enemies. It bears noting that so fraught with malice was the phrase “enemy of the people,” that even Nikita Khrushchev forbade its use, telling the Soviet Communist Party that the phrase had been introduced by Stalin for the purpose of “annihilating such individuals” who disagreed with the supreme leader.
This alone should be a source of great shame for us in this body, especially for those of us in the president’s party. For they are shameful, repulsive statements. And, of course, the president has it precisely backward – despotism is the enemy of the people. The free press is the despot’s enemy, which makes the free press the guardian of democracy. When a figure in power reflexively calls any press that doesn’t suit him “fake news,” it is that person who should be the figure of suspicion, not the press.
I dare say that anyone who has the privilege and awesome responsibility to serve in this chamber knows that these reflexive slurs of “fake news” are dubious, at best. Those of us who travel overseas, especially to war zones and other troubled areas around the globe, encounter members of U.S. based media who risk their lives, and sometimes lose their lives, reporting on the truth. To dismiss their work as fake news is an affront to their commitment and their sacrifice.
According to the International Federation of Journalists, 80 journalists were killed in 2017, and a new report from the Committee to Protect Journalists documents that the number of journalists imprisoned around the world has reached 262, which is a new record. This total includes 21 reporters who are being held on “false news” charges.
Mr. President, so powerful is the presidency that the damage done by the sustained attack on the truth will not be confined to the president’s time in office. Here in America, we do not pay obeisance to the powerful – in fact, we question the powerful most ardently – to do so is our birthright and a requirement of our citizenship — and so, we know well that no matter how powerful, no president will ever have dominion over objective reality.
No politician will ever get to tell us what the truth is and is not. And anyone who presumes to try to attack or manipulate the truth to his own purposes should be made to realize the mistake and be held to account. That is our job here. And that is just as Madison, Hamilton, and Jay would have it.
Of course, a major difference between politicians and the free press is that the press usually corrects itself when it gets something wrong. Politicians don’t.
No longer can we compound attacks on truth with our silent acquiescence. No longer can we turn a blind eye or a deaf ear to these assaults on our institutions. And Mr. President, an American president who cannot take criticism – who must constantly deflect and distort and distract – who must find someone else to blame — is charting a very dangerous path. And a Congress that fails to act as a check on the president adds to the danger.
Now, we are told via twitter that today the president intends to announce his choice for the “most corrupt and dishonest” media awards. It beggars belief that an American president would engage in such a spectacle. But here we are.
And so, 2018 must be the year in which the truth takes a stand against power that would weaken it. In this effort, the choice is quite simple. And in this effort, the truth needs as many allies as possible. Together, my colleagues, we are powerful. Together, we have it within us to turn back these attacks, right these wrongs, repair this damage, restore reverence for our institutions, and prevent further moral vandalism.Together, united in the purpose to do our jobs under the Constitution, without regard to party or party loyalty, let us resolve to be allies of the truth — and not partners in its destruction.
It is not my purpose here to inventory all of the official untruths of the past year. But a brief survey is in order. Some untruths are trivial – such as the bizarre contention regarding the crowd size at last year’s inaugural.
But many untruths are not at all trivial – such as the seminal untruth of the president’s political career – the oft-repeated conspiracy about the birthplace of President Obama. Also not trivial are the equally pernicious fantasies about rigged elections and massive voter fraud, which are as destructive as they are inaccurate – to the effort to undermine confidence in the federal courts, federal law enforcement, the intelligence community and the free press, to perhaps the most vexing untruth of all – the supposed “hoax” at the heart of special counsel Robert Mueller’s Russia investigation.
To be very clear, to call the Russia matter a “hoax” – as the president has many times – is a falsehood. We know that the attacks orchestrated by the Russian government during the election were real and constitute a grave threat to both American sovereignty and to our national security. It is in the interest of every American to get to the bottom of this matter, wherever the investigation leads.
Ignoring or denying the truth about hostile Russian intentions toward the United States leaves us vulnerable to further attacks. We are told by our intelligence agencies that those attacks are ongoing, yet it has recently been reported that there has not been a single cabinet-level meeting regarding Russian interference and how to defend America against these attacks. Not one. What might seem like a casual and routine untruth – so casual and routine that it has by now become the white noise of Washington – is in fact a serious lapse in the defense of our country.
Mr. President, let us be clear. The impulses underlying the dissemination of such untruths are not benign. They have the effect of eroding trust in our vital institutions and conditioning the public to no longer trust them. The destructive effect of this kind of behavior on our democracy cannot be overstated.
Mr. President, every word that a president utters projects American values around the world. The values of free expression and a reverence for the free press have been our global hallmark, for it is our ability to freely air the truth that keeps our government honest and keeps a people free. Between the mighty and the modest, truth is the great leveler. And so, respect for freedom of the press has always been one of our most important exports.
But a recent report published in our free press should raise an alarm. Reading from the story:
“In February…Syrian President Bashar Assad brushed off an Amnesty International report that some 13,000 people had been killed at one of his military prisons by saying, “You can forge anything these days, we are living in a fake news era.”
In the Philippines, President Rodrigo Duterte has complained of being “demonized” by “fake news.” Last month, the report continues, with our President, quote “laughing by his side” Duterte called reporters “spies.”
In July, Venezuelan President Nicolas Maduro complained to the Russian propaganda outlet, that the world media had “spread lots of false versions, lots of lies” about his country, adding, “This is what we call ‘fake news’ today, isn’t it?”
There are more:
“A state official in Myanmar recently said, “There is no such thing as Rohingya. It is fake news,” referring to the persecuted ethnic group.
Leaders in Singapore, a country known for restricting free speech, have promised “fake news” legislation in the new year.”
And on and on. This feedback loop is disgraceful, Mr. President. Not only has the past year seen an American president borrow despotic language to refer to the free press, but it seems he has in turn inspired dictators and authoritarians with his own language. This is reprehensible.
We are not in a “fake news” era, as Bashar Assad says. We are, rather, in an era in which the authoritarian impulse is reasserting itself, to challenge free people and free societies, everywhere.
In our own country, from the trivial to the truly dangerous, it is the range and regularity of the untruths we see that should be cause for profound alarm, and spur to action. Add to that the by-now predictable habit of calling true things false, and false things true, and we have a recipe for disaster. As George Orwell warned, “The further a society drifts from the truth, the more it will hate those who speak it.”
Any of us who have spent time in public life have endured news coverage we felt was jaded or unfair. But in our positions, to employ even idle threats to use laws or regulations to stifle criticism is corrosive to our democratic institutions. Simply put: it is the press’s obligation to uncover the truth about power. It is the people’s right to criticize their government. And it is our job to take it.
What is the goal of laying siege to the truth? President John F. Kennedy, in a stirring speech on the 20th anniversary of the Voice of America, was eloquent in answer to that question:
“We are not afraid to entrust the American people with unpleasant facts, foreign ideas, alien philosophies, and competitive values. For a nation that is afraid to let its people judge the truth and falsehood in an open market is a nation that is afraid of its people.”
Mr. President, the question of why the truth is now under such assault may well be for historians to determine. But for those who cherish American constitutional democracy, what matters is the effect on America and her people and her standing in an increasingly unstable world — made all the more unstable by these very fabrications. What matters is the daily disassembling of our democratic institutions.
We are a mature democracy – it is well past time that we stop excusing or ignoring – or worse, endorsing — these attacks on the truth. For if we compromise the truth for the sake of our politics, we are lost.
I sincerely thank my colleagues for their indulgence today. I will close by borrowing the words of an early adherent to my faith that I find has special resonance at this moment. His name was John Jacques, and as a young missionary in England he contemplated the question: “What is truth?” His search was expressed in poetry and ultimately in a hymn that I grew up with, titled “Oh Say, What is Truth.” It ends as follows:
“Then say, what is truth? ‘Tis the last and the first,
For the limits of time it steps o’er.
Tho the heavens depart and the earth’s fountains burst.
Truth, the sum of existence, will weather the worst,
→Conference Date: The conference will be held at Yale Law School in New Haven, Connecticut from April 27–29, 2018.
→ Response Date: All those interested in presenting a paper or commenting on a paper respond by February 23, 2018.
At FESC, scholars and practitioners discuss works-in-progress on the freedoms of speech, expression, press, association, petition, and assembly as well as on related issues of knowledge and information policy. FESC has become a fixture on the calendar of leading First Amendment thinkers and scholars nationwide.
The paper titles and attendees from prior conferences are available here:
→ Workshop Sessions: Each accepted paper is assigned to a discussant, who will summarize the paper for the workshop audience, provide feedback, and lead a discussion. Workshop sessions are typically lively discussions among authors, discussants, and participants. Sessions run from Saturday morning through Sunday afternoon, with a welcome dinner on Friday evening. Conference participants are expected to read the papers in advance and to attend the entire conference.
Papers are accepted on a wide array of freedom of expression and information policy topics. Although participation at the conference is by invitation only, we welcome paper proposals from scholars, practitioners, and free speech advocates all over the world. Please feel free to share this call for submissions widely.
→ Abstract Submissions & Due Date: Titles and abstracts of papers should be submitted electronically to Heather Branch no later than February 23, 2018.
→ For Additional Information: Those interested in attending the conference or acting as a discussant should also contact Heather Branch no later than February 23, 2018.
→ Due Date for Completed Papers: Workshop versions of accepted papers will be due on March 30, 2018, so that they can be circulated to discussants and other conference participants.
→ Travel & Accommodations: Participants will ask their home institutions to cover travel expenses. However, thanks to a generous donation from the Stanton Foundation, we are able to offer Abrams Travel Fellowships to cover some of the costs associated flights, lodging, and reasonable travel expenses for presenters and discussants who would not otherwise be able to attend. This fellowship is intended to encourage submissions from junior faculty and lawyers. Should you be invited to participate as an author or discussant, please inform us in your response whether you will require Abrams Travel Fellowship funding.
→ For Additional Information: Re questions: contact Heather Branch.
Be sure to have Alexa, or Echo, or Seri, or your Google Mini save the date for an important upcoming conference on artificial intelligence. On Saturday, February 17, 2018, from 9 am to 5 pm, Seattle University Law School will host a conference titled:
Singularity: Artificial Intelligence & the Law (Casey Commons, Seattle University)
→Keynote Speaker:Ryan Calo, University of Washington School of Law
Panel 1, Robotic Speech and the First Amendment: David Skover, Seattle University School of Law; Helen Norton, University of Colorado Law School; Bruce Johnson, Partner, Davis Wright Tremaine. (This panel will discuss the issues raised in the forthcoming Collins & Skover book Robotica: Speech Rights & Artificial Intelligence (Cambridge University Press, May 2018), and will be moderated by Seattle University Law Professor Gregory Silverman.)
Panel 2, Accountability for the Actions of Robots: Ryan Calo, University of Washington School of Law; Elizabeth Joh, UC-Davis School of Law (This panel will focus on Professor Calo’s research into the liability consequences when robots cause harm; a third panelist confirmation is still pending.)
Panel 3, Ethical Considerations in Artificial Intelligence: Justin Tiehen, University of Puget Sound; Ariela Tubert, University of Puget Sound; Mark Van Hollebeke, Director of Privacy, Microsoft. (This panel features will consider discreet issues in AI with an emphasis on the ethical issues in evaluating new technologies, including where ethical and legal considerations intersect.)
Cato to host panel on Janus v. American Federation
Location: Hayek Auditorium, Cato Institute, Washington, D.C.
Participants:Raymond J. LaJeunesse Jr., Vice President and Legal Director, National Right to Work Legal Defense Foundation; Donald B. Verrilli Jr., Partner, Munger, Tolles & Olson and former Solicitor General of the United States; and Ilya Shapiro, Senior Fellow in Constitutional Studies, Cato Institute; moderated by Trevor Burrus, Research Fellow, Cato Institute.
Description: On February 26, the Supreme Court will hear oral argument in Janus v. American Federation of State, County, and Municipal Employees (AFSCME), a case that has the potential to overturn a 40-year-old precedent (Abood v. Detroit Board of Education) that allows public-sector unions to charge nonmembers “agency fees.” Currently, half the states have laws that enable such fees. Mark Janus—an Illinois state employee but not a union member—objects generally to being required to pay AFSCME, as well as to these funds being used to support the union’s ongoing legal fight against the governor’s policy reforms. Janus sued the union for violating his First Amendment rights by compelling these payments. In addition to their responses to that constitutional claim, AFSCME and Illinois have argued throughout the litigation that stare decisis—the prudential doctrine regarding judicial respect for settled precedent—demands that Abood be maintained.
Cato filed an amicus brief (Ilya Shapiro, counsel of record) discussing the historical underpinnings of stare decisis and contending that a proper understanding of stare decisis actually demands that Abood be overturned.
→ If you can’t make it to the event, you can watch it live online at www.cato.org/live and join the conversation on Twitter using #CatoEvents. Follow @CatoEvents on Twitter to get future event updates, live streams, and videos from the Cato Institute.
Related: Eugene Volokh, The Limits of Textualism and the Union Agency Fee Case, The Volokh Conspiracy (Reason.com), Jan. 21, 2018 (“Friday, I argued that there’s no First Amendment problem with compulsory union agency fees in Janus v. ASFCME: Just as there’s generally no Free Speech Clause problem with a government requiring taxpayers to pay it taxes that it then uses to advocate for certain things (e.g., against gang violence, against racism, for religious tolerance, for recycling), so there’s no such problem with a government employer requiring employees to pay agency fees to unions that the unions then use to advocate for various things (e.g., for certain labor contracts or for certain labor legislation). Some commenters responded that the Constitution does distinguish the two: The Constitution, they noted, specifically provides for the taxing power, but not for requiring agency fee payments. . . .”)
Danielle Lewis
Upcoming PARMA Conference: “Effective Governing & the First Amendment”
In a session entitled, “Effective Governing and the First Amendment,” Ms. Lewis and Mr. Thornton will discuss strategies and protocols to address compliance with Constitutional provisions and state law in the face of challenges to the efficient operation of local government, including the responsibilities of public officials and law enforcement.
New Policy Report on Censorship
Cato Policy Report, The New World of Censorship (Dec. 2017) (The internet age has been a boon to free speech in many ways — but it also brings new challenges, including the chilling effect of government surveillance on free expression and the mounting pressure from the European Union on companies like Google and Twitter to censor and monitor speech worldwide. How should we counter these attempts to censor “extremist speech”? DANIELLE KEATS CITRON of the University of Maryland Law School joined Cato’s MATTHEW FEENEY and FLEMMING ROSE to discuss these questions at Cato’s conference The Future of the First Amendment in September.)
Abstract: In a conversation with members of the California Law Review recorded in April 2017, Charles Robinson, General Counsel of the University of California, discussed the university’s approach to free speech on campus. A glance at recent headlines from outlets ranging from the San Francisco Chronicle to TIME to Fox News shows a wide range of opinions about UC Berkeley’s legal and moral responsibilities in the most recent controversy around planned far-right speakers at UC Berkeley.
Unlike private universities, public universities are subject to the limits of the First Amendment. The First Amendment applies with the same force on public college campuses as it does in the broader community. See Healy v. James (1972).
Public universities cannot constitutionally prohibit speech based on its content, even when the content is contrary to other values that the university may hold. See Papish v. Board of Curators of University of Missouri (1973). That type of “viewpoint discrimination” is generally proscribed by the First Amendment. Instead, universities must rely on less restrictive limitations such as restrictions on the time, place, and manner of speech or limits on speech directed towards inciting violence and likely to incite violence. See Cox v. New Hampshire (1941); Brandenburg v. Ohio(1969).
In this episode, the General Counsel discusses how UC Berkeley balances the competing values of promoting free speech and taking a stand against hate speech and abhorrent viewpoints. Listen now for a perspective from someone who has been on the front lines of this pressing national issue.
NYPD official Apologizes to the Prospect Park Rape Victim
This from James Webb at the New York Post: “A top NYPD official on Friday issued a stunning apology to the Prospect Park rape victim he helped discredit more than 23 years ago — as the victim spoke out for the first time since her case was finally solved.”
“First she was raped by a stranger in Prospect Park in 1994. Then she was violated again — this time by the cops who questioned her credibility and a Daily News columnist who called the attack a ‘hoax.’ But now, after more than 23 years, she’s finally getting justice.”
“After running new DNA tests, police have identified the man who attacked the then-27-year-old Yale graduate in Prospect Park, linking the heinous crime to James Edward Webb, 68, a serial rapist who is serving 75 years to life at Sing Sing, sources told The Post.”
Garbus Vindicated: “. . . Daily News, I am a person, whom you printed egregiously cruel lies about, without any real evidence. Those lies shattered what was left of my not-quite 26-year-old psyche. You owe me an apology. A real human being cried countless tears over the pain you caused.”
“When the famous First Amendment lawyer Martin Garbus took up my case against the Daily News, his colleagues were shocked that he would sue the News on my behalf. I wondered aloud why he would risk his career to help me. He answered gravely, ‘The truth matters.'”
U. Alabama: Student Kicked Out for Racism
This from Jeremy Bauer-Wolf for Inside Higher Ed(Jan. 23, 2018):
“[A] student at the University of Alabama has been expelled after she posted videos to Instagram rife with racial slurs, also earning her national condemnation. The same arguments arise again — did the university, a public institution operating as a government representative, break the law?
“‘I think the student would have a strong case for suing the University of Alabama for violating her First Amendment rights,” said Erwin Chemerinsky, a constitutional scholar and dean of the University of California, Berkeley, School of Law. ‘Her speech is protected by the First Amendment, though it is offensive and uses epithets.'”
The student, Harley Barber, published videos to Instagram on Martin Luther King Jr. Day. As she stands near a sink in an initial video, she says that “we don’t waste water because of people in Syria.”
“‘I love how I act like I love black people, because I fucking hate niggers,’ Barber rants in the video, repeating the epithet multiple times. . . .”
→ Statement from University President Stuart R. Bell here
Colorado State University’s First Amendment Conversation Series
From controversial speakers to classroom discussions, from residence hall spaces to student plaza activities: What constitutes protected free speech on campus, and when does it cross the line into unprotected forms of expression? The answers are nuanced and defined by 100 years of case law that center around such concepts as fighting words, the heckler’s veto, symbolic speech, content neutral time/place/manner restrictions, and concerns around safety and disruption to campus operations.
Colorado State University launched the First Amendment Conversation Series last December to help faculty and staff understand the rights and restrictions of free speech and peaceful assembly on campus. The pilot was hosted by the Multicultural Staff and Faculty Network, which will continue to co-sponsor the series going forward. The pilot session was an overwhelming success with registration filling up within two days of a limited announcement to campus. As a result, the University decided to expand the number of sessions it already was planning to offer during the Spring 2018 semester.
Abstract: The generation now coming of age has been taught three Great Untruths: their feelings are always right; they should avoid pain and discomfort; and they should look for faults in others and not themselves. These three Great Untruths are part of a larger philosophy that sees young people as fragile creatures who must be protected and supervised by adults. But despite the good intentions of the adults who impart them, the Great Untruths are harming kids by teaching them the opposite of ancient wisdom and the opposite of modern psychological findings on grit, growth, and antifragility. The result is rising rates of depression and anxiety, along with endless stories of college campuses torn apart by moralistic divisions and mutual recriminations.
Jonathan Haidt (credit: Dartmouth Review)
This is a book about how we got here. First Amendment expert Greg Lukianoff and social psychologist Jonathan Haidt take us on a tour of the social trends stretching back to the 1980s that have produced the confusion and conflict on campus today, including the loss of unsupervised play time and the birth of social media, all during a time of rising political polarization.
This is a book about how to fix the mess. The culture of “safety” and its intolerance of opposing viewpoints has left many young people anxious and unprepared for adult life, with devastating consequences for them, for their parents, for the companies that will soon hire them, and for a democracy that is already pushed to the brink of violence over its growing political divisions. Lukianoff and Haidt offer a comprehensive set of reforms that will strengthen young people and institutions, allowing us all to reap the benefits of diversity, including viewpoint diversity.
This is a book for anyone who is confused by what’s happening on college campuses today, or has children, or is concerned about the growing inability of Americans to live and work and cooperate across party lines.
Abstract: “The manufacture of doubt” refers to a speaker’s strategic efforts to undermine factual assertions that threaten its self-interest. This strategy was perhaps most famously employed by the tobacco industry in its longstanding campaign to contest mounting medical evidence linking cigarettes to a wide range of health risks. At its best, the government’s speech can counter such efforts and protect the public interest, as exemplified by the Surgeon General’s groundbreaking 1964 report on the dangers of tobacco, a report that challenged the industry’s preferred narrative. But the government’s speech is not always so heroic, and governments themselves sometimes seek to manufacture doubt and protect their own interest at the expense of the public’s.
Professor Helen Norton
In this short essay, I examine how the government sometimes seeks to manufacture doubt about factual assertions it perceives as inconsistent with its policy or partisan preferences. I start with some background on the history of government speech in the United States, a history that reveals the diversity and complexity of the government’s expressive choices. Drawing from historical and contemporary examples, I then identify at least three expressive strategies through which the government can manufacture doubt: through its lies and misrepresentations, through its attacks on individuals and institutions that challenge its preferred narrative, and through its choices to bury or deny access to information that it finds inconvenient or dangerous. I close by briefly considering possible responses to these strategies.
The government’s speech can serve, or instead, threaten deliberative democracy. At its best, the government’s voice speaks truth to power both public and private and supports or amplifies the voices of the powerless. But government is not always at its best. Our history and continuing experience reveal a variety of ways in which the government’s expressive choices can manufacture doubt, distort the truth, and frustrate key constitutional values. In this essay, I seek to identify some of these patterns (both longstanding and new) in hopes that we can better recognize and challenge them when they arise.
“We are excited to announce a new series of weekly video conversations with FIRE staff where we candidly discuss the top student and faculty rights stories of the day.”
“In our first episode of FIREside Chats, Will Creeley moderates a discussion about the Anthony Scaramucci controversy at Tufts University with Brynne Madway and Adam Steinbaugh. Afterward, they are joined by Marieke Tuthill Beck-Coon for a conversation about student surveillance at the University of North Carolina at Chapel Hill.”
“New episodes of FIREside Chats will be uploaded to our YouTube channel every week.”
Steven N. Schwinn, Tenth Circuit Rejects First Amendment Retaliation Claims, Constitutional Law Prof Blog, Jan. 22, 2018 (The Tenth Circuit ruled last week that a former sheriff and undersheriff enjoyed qualified immunity against claims that they retaliated against employees for exercising free speech. The ruling means that the case is dismissed. The case underscores the power of qualified immunity and the challenges that plaintiffs sometimes face in overcoming it, especially when circuit law hasn’t addressed the plaintiffs’ precise claims.”)
As you can see from the two news items mentioned below, the Sandra Day O’Connor College of Law at Arizona State University continues to make its presence known (and in big ways) in the First Amendment community. Recall that last October the Law School co-hosted, with New York University Law School, an impressive conference to commemorate the 100th anniversary of Judge Learned Hand’s opinion in Masses Publishing Co. v. Patten (1917).
→Questions: email scetlevents@asu.edu or call (480) 965-0155
FRIDAY PROGRAM
Date: February 23, 2018
Location: ASU Tempe Campus, New Student Pavilion
Robert Post (Yale Daily News)
Opening Keynote Lecture
Robert Post
Former Dean, Yale Law School
“The Classic First Amendment Tradition Under Stress: Freedom of Speech and the University”
Panel: “Why Do Students Need Free Speech on Campus?”
Moderator: Nicole Taylor, Deputy Vice President, Dean of Students, ASU Tempe Campus
Panelists:
Zachary Wood, Williams College
Matthew Foldi, University of Chicago
and Students for Free Expression Gabriel Sandler, Arizona State University
Téa Francesca Price, Arizona State University
Professor Harvey Mansfield (Harvard Gazette)
Panel: “Free Inquiry and the Philosophy of Higher Education”
Moderator: Daniel Cullen, Professor, Rhodes College
Panelists:
Jim Stoner, Louisiana State University
Harvey Mansfield, Harvard University
Norma Thompson, Yale University
Professor Richard Garnett
Panel: “Intellectual Diversity and Higher Education: A Crisis?”
Moderator: Cristine Legare, Associate Professor, University of Texas, Austin
Panelists:
Joshua Dunn, University of Colorado, Colorado Springs
Neil Gross, Colby College
Richard Garnett, University of Notre Dame, Law School
Plenary Address
Jeremy Waldron, University Professor, New York University Heckling in a University Setting “Heckling in a University Setting”
SATURDAY PROGRAM
Date: February 24, 2018
Location: ASU Downtown Campus, Sandra Day O’Connor College of Law, BCLS 544
Heather McDonald
Panel: Negotiating Controversial Speakers on Campus
Moderator: Stefanie Lindquist, Deputy Provost, Academic Affairs and Professor, ASU
Panelists
Heather MacDonald, Manhattan Institute
Bret Weinstein, Evergreen College
Ulrich Baer, Professor, New York University
Professor James Weinstein
Panel: Freedom of Speech and Thought on Campus: What Role for the First Amendment?
Moderator: James Weinstein, Dan Cracchiolo Chair in Constitutional Law, Sandra Day O’Connor College of Law, ASU
Panelists
Azhar Majeed, Vice President, FIRE
Donald Downs, University of Wisconsin, Madison
Laura Beth Nielsen, Northwestern University, and American Bar Foundation
Professor Larry Alexander
Panel: State Legislative Remedies to Free Speech Challenges on Campus: Are They Consistent with Academic Freedom?
Moderator: Mike Liburdi, General Counsel, AZ Governor Doug Ducey, and adjunct Professor, Sandra Day O’Connor College of Law
Eugene Volokh, UCLA School of Law
James Manley, Goldwater Institute
Larry Alexander, University of San Diego School of Law
First Amendment Fellow Sought for 1-A ClinicThe Sandra Day O’Connor College of Law at Arizona State University seeks applicants for a full-time fellow position. The inaugural First Amendment Fellow will help design and run a First Amendment clinic focused on speech, press, and assembly rights.
Training officers on First Amendment rights, including the public’s right to photograph officers while performing their public duties, has been implemented at the Lafayette Police Department. The training was included in a settlement announced by the American Civil Liberties Union of Louisiana today.
“The lawsuit was brought by Chelline Carter, who had her camera warrantlessly seized and searched by Officer Shannon Brasseaux of the Lafayette PD. Carter had been called to a local drugstore because her son had just been arrested. After helping the officer find her son’s ID card, Carter walked over to the vehicle her son had been placed in and took a photo of him.”
“Officer Brasseaux then took Carter’s phone from her, claiming she had broken the law by taking pictures of ‘evidence.’ He then swiped her phone to open it, searched for the photo she had taken of her son, and deleted it. . . .”
Department of Justice files statement of interest in UC Berkeley First Amendment case
Brynne Madway, writing for FIRE, has written that “the U.S. Department of Justice filed a statement of interest in a lawsuit brought by the Berkeley College Republicans and Young America’s Foundation alleging that Berkeley’s High-Profile Speakers and Major Events policies violate their First and Fourteenth Amendment rights.”
“In its statement of interest, the DOJ argues that the “Plaintiffs’ allegations, if proven, demonstrate that the University’s High-Profile Speaker Policy and Major Events Policy are unconstitutional because they grant administrators unchecked discretion to restrict protected speech.” Associate Attorney General Rachel Brand said in a press release announcing the filing: ‘This Department of Justice will not stand by idly while public universities violate students’ constitutional rights.'” (emphasis added)
“The DOJ has been active in campus speech litigation in recent months. Last fall, the DOJ filed a statement of interest in Shaw v. Burke, a lawsuit filed as part of FIRE’s Million Voices campaign.”
Wisconsin high Court to hear appeal from fired Marquette University professor
Professor John McAdams
This from Ryne Weiss over at FIRE: “Last week, the Wisconsin Supreme Court agreed to hear an appeal by Professor John McAdams in his lawsuit against Marquette University. McAdams was fired by Marquette for criticizing a graduate instructor on his personal blog. McAdams’ lawyers petitioned Wisconsin’s highest court to hear the case, bypassing the intermediate appellate court. FIRE filed an amicus curiae brief in support of the petition.”
“Following the dismissal of McAdams’ case by the Milwaukee County Circuit Court, FIRE hopes that the Wisconsin Supreme Court’s willingness to hear the case indicates its appreciation of the case’s importance to free expression and academic freedom on Wisconsin’s college and university campuses. We will continue to keep readers updated on the progress of McAdams’ appeal.”
R.I. ACLU contests town’s social media policy for city employees
This from a recent press release: “The ACLU of Rhode Island has called upon the East Greenwich Town Council to revisit an ‘Employee Social Media Policy’ it adopted last week. In a letter to the Council, the ACLU raises concerns about the policy’s ‘breadth and its impact on Town employees’ First Amendment rights.’ Excerpts from the ACLU’s letter appear below:
“A major problem with this policy . . . is that it inappropriately conflates an employee’s speech as an employee with their speech as a private citizen. . . But the Town simply has no authority to regulate an employee’s private speech in the same manner as his or her speech in an official capacity. Government employees retain the general right to speak out as private citizens on matters of public concern.
“The policy’s restrictions are also extremely vague and open-ended. Among the types of speech that employees, even in their personal capacity, cannot post are comments that ‘ridicule,’ ‘disparage,’ or ‘otherwise bias [sic] against … any protected class of individuals.’ A person privately retweeting, or responding to, some of President Trump’s less tolerant comments over this past year could very well find themselves in violation of this policy.
“The policy further bans employees’ private speech ‘involving themselves or other Town personnel reflecting behavior that would reasonably be considered reckless.’ In light of last November’s rather scathing opinion issued by Superior Court Judge Susan McGuirl, finding that the Town engaged in knowing and willful violations of the law, would it violate this policy for an employee to make reference to that opinion since it reflects ‘reckless’ behavior on the part of Town officials?
“In light of all that has gone on in the Town during the past year, we would respectfully submit that more speech, rather than less, should be encouraged among Town employees. A policy that so broadly serves only to chill employees from speaking out about improprieties, misconduct or other matters affecting the residents of East Greenwich is a disservice not only to the Town and its employees, but to its residents as well. The additional broad censorship of private speech unrelated to Town matters also sets a poor example.”
“The letter concluded by urging the Council to reconsider the policy in light of these issues. For the past year, the Town has been embroiled in various controversies and litigation over employment matters and open meetings violations by the Town Council. It was only after its passage last week that some residents contacted the ACLU about the new policy, prompting the letter.”
Abstract: Free speech is under attack at colleges and universities today, with critics on and off campus challenging the value of open inquiry and freewheeling intellectual debate. Too often speakers are shouted down, professors are threatened, and classes are disrupted. In Speak Freely, Keith Whittington argues that universities must protect and encourage free speech because vigorous free speech is the lifeblood of the university. Without free speech, a university cannot fulfill its most basic, fundamental, and essential purposes, including fostering freedom of thought, ideological diversity, and tolerance.
Examining such hot-button issues as trigger warnings, safe spaces, hate speech, disruptive protests, speaker dis-invitations, the use of social media by faculty, and academic politics, Speak Freely describes the dangers of empowering campus censors to limit speech and enforce orthodoxy. It explains why free speech and civil discourse are at the heart of the university’s mission of creating and nurturing an open and diverse community dedicated to learning. It shows why universities must make space for voices from both the left and right. And it points out how better understanding why the university lives or dies by free speech can help guide everyone―including students, faculty, administrators, and alumni―when faced with difficult challenges such as unpopular, hateful, or dangerous speech.
Abstract: Fake news” has become the central inflammatory charge in media discourse in the United States since the 2016 presidential contest. In the political realm, both intentionally fabricated information and the “fake news” defense by politicians confronted with negative press reports can potentially influence public beliefs and possibly even skew electoral results. Perhaps even more insidiously, as evidenced by President Trump’s dismissal of the traditional press as the “enemy of the American people,” the “fake news” accusation can serve as a power-shifting governance mechanism to delegitimize the institutional press as a whole. Both these strategic uses of “fake news”—to achieve specific political results and to destabilize the press as an institution—are self-evidently very dangerous for democracy. As if this were not a sufficient threat to the democratic order, however, “fake news” is also a threat, inter alia, to the stability of the financial markets as well. Whether for competitive advantage, terror, or geopolitical gamesmanship, the deployment of market-affecting fabricated information is a looming danger ahead. Simply put, therefore, “fake news” presents profound—and likely increasing—challenges for both the public and private spheres today.
Professor Lili Levi
In light of this complexity, no single—or simple—tactic is sufficient to address the variety of challenges posed by the multi-headed phenomenon of “fake news.” This Article suggests beginning with a three-pronged approach—focusing on platform self-regulation, audience information literacy, and—perhaps counterintuitively—empowerment of the press itself. First, despite distrust of platform self-regulation, there is reason to believe that the threats posed by “fake news” to commercial interests may stimulate constructive solutions. Second, while cognitive science reveals limits to traditional information literacy approaches, interdisciplinary engagement may enhance the effectiveness of inevitably iterative information literacy initiatives in the “fake news” context. Third, in contrast to suggested solutions exploring express governmental attempts to prohibit or limit “fake news” directly, the Article instead recommends a reversal of current doctrine and practice in the form of a broad-based expansion of affirmative rights for the press. If given expanded protections, the professional press can transform the modern context of “fake news” into an opportunity to shine as a watchdog and, hopefully, thereby rebuild public trust. Tools to empower the professional press can help forge alliances between the conservative and liberal wings of the traditional media, thereby isolating and minimizing the impact of newly-rising alt-right media entrants. The results will surely be imperfect, but the alternative is worse: a neutered and supine press operating merely to entertain a fragmented and polarized audience in an increasingly authoritarian global political and commercial environment.
The mainstream press today is both demonized by the right and at risk from the left’s recent attempts to desacralize the First Amendment on the ground of its rightward ideological drift. In questioning that development, the Article suggests that progressive scholars’ critiques of recent libertarian doctrinal developments regarding the freedom of speech should in no way impede the recognition and enhancement of the First Amendment’s protections for a free and independent press. In that spirit, the Article appeals to courts, legislators, and government actors at every level to back up an ostensible commitment to free speech with an equally robust commitment to a free press. It also calls on the press to revise its practices in response.
Abstract: Technology is often characterized as an outside force, with essential qualities, acting on the law. But the law, through both doctrine and theory, constructs the meaning of the technology it encounters. A particular feature of a particular technology disrupts the law only because the law has been structured in a way that makes that feature relevant. The law, in other words, plays a significant role in shaping its own disruption. This Essay is a study of how a particular technology, artificial intelligence, is framed by both copyright law and the First Amendment. How the algorithmic author is framed by these two areas illustrates the importance of legal context and legal construction to the disruption story.
By the end of World War II, Jehovah’s Witnesses would argue nearly two dozen First Amendment cases at the Supreme Court. Their body of litigation would pressure the court to better define, and elevate, the role of personal liberty protections in American law.
As Sarah Barringer Gordon, a law professor at the University of Pennsylvania puts it: Jehovah’s Witnesses “brought into existence a new constitutional world.”
In the penultimate episode of the Constitutional podcast, we examine the fascinating story of how this marginalized group was able to so powerfully transform First Amendment law. Gordon is a special guest on the episode alongside Julie Silverbrook, executive director of the Constitutional Sources Project.
In the wake of hate group rallies and protests of controversial speakers on college campuses, how far does the right to free speech extend? What are its limits? Should the federal government and universities be empowered to place further restrictions on speech, or would further curtailments do more harm than good? Join us as we discuss with Professor Geoffrey Stone, Edward H. Levi Distinguished Service Professor at the University of Chicago, and Professor Genevieve Lakier, Assistant Professor of Law at the University of Chicago.
This episode of Briefly, a production of the University of Chicago Law Review, was produced by Tom Molloy and John Tienken.
“Has the history of how our constitutional rights came to be protected on campus been forgotten?”
“Professor Randall L. Kennedy believes it has. It’s a history even he wasn’t familiar with until recently. On this episode of So to Speak: The Free Speech Podcast, Professor Kennedy explains how civil rights activists in the 1950s and 60s secured early victories for free speech, due process, and public assembly on high school and college campuses.”
“Professor Kennedy teaches courses on contracts, criminal law, and the regulation of race relations at Harvard Law School, and he is the author of “The Forgotten Origins of the Constitution on Campus.” Prior to arriving at Harvard, he was a law clerk for Justice Thurgood Marshall at the United States Supreme Court.”
Wilson County, Tenn. probation officer is fired for (allegedly) lying in court. A violation of her First Amendment rights and/or the Tennessee Public Employee Political Freedom Act? The Sixth Circuit says no.
Carpenter v. United States (Whether the warrantless seizure and search of historical cellphone records revealing the location and movements of a cellphone user over the course of 127 days is permitted by the Fourth Amendment.)
Blagojevich v. United States (When the Government prosecutes a public official for soliciting campaign contributions in alleged violation of the Hobbs Act or other federal anti-corruption laws, must the Government prove the defendant made an “explicit promise or undertaking” in exchange for the contribution, McCormick v. United States (1991) (emphasis added), as five circuits require, or “only . . . that a public official has obtained a payment . . . knowing that [it] was made in return for official acts,” Evans v. United States (1992), as three other circuits hold?)
Over at Popehat a new First Amendment podcast series has been launched; it’s titled “Make No Law” and is hosted on the Legal Talk Network. The podcasts are conducted by Kenneth P. White, a criminal defense and First Amendment lawyer at Brown White & Osborn.
“In the podcast, we explore the background, personalities, and social and historical context of some of America’s most important First Amendment cases. What made Walter Chaplinsky so angry that he uttered his famous “fighting words” in New Hampshire, and why was a crowd so angry at him? Why did Mary Beth Tinker decide to wear a black armband to school? What made Richard Ceballos’ supervisors retaliate against him for raising concerns about police misconduct, and how did he fight back? Who gets to decide whether a trademark like “The Slants” is offensive to a group — members of the group, or the government?”
Kenneth P. White
“Through interviews of some of the participants, historians, and experts, primary documents read by voice actors, and commentary, Ken White will explain both what these cases mean for your rights today, and what they meant to the real people who fought for their rights to produce these decisions. Every episode will be accompanied by a post here at Popehat with links to supporting materials: cases, oral argument recordings, historical materials, and so on. As the series progresses, we hope that you will send in your First Amendment questions and your suggestions for cases to cover.
(In this inaugural episode White explores the Chaplinsky v. New Hampshire case and the ensuing “fighting words” doctrine, which is often cited in disputes over free speech in the United States.)
(White dives into the Tinker v. Des Moines case and how it has impacted freedom of speech for students on campuses today.)
Forthcoming episodes: Ceballos & Matal v. Tam
Episode Three: “On The Job”: How do the courts balance the free speech rights of government employees with the need to maintain discipline in government workplaces? I interview Richard Ceballos, a Deputy District Attorney who faced retaliation for questioning a search warrant, and whose case articulated a troubling rule for government employees.
Episode Four, “Disparagement, Contempt, and Disrepute”: I interview Simon Tam of the band The Slants about his recent Supreme Court victory and the trademark process that, despite what he and his fans thought, told him his band’s name was racist and unacceptable.
California Superior Court Upholds First Amendment Claim in Same-Sex Wedding Cake Case
“A wedding cake is not just cake in Free Speech analysis. It is an artistic expression by the person making it that is to be used traditionally as centerpiece in the celebration of marriage. There could not be greater form of expressive conduct. Here, Rodriguez—Del Rios plan to engage in speech. They plan celebration to declare the validity of their marital union and their enduring love for one another. The State asks this court to compel Miller against her will and religion to allow her artistic expression in celebration of marriage to be co-opted to promote the message desired by same-sex marital partners, and with which Miller disagrees….”
“The court cannot retreat from protecting the Free Speech right implicated in this case based upon the specter of factual scenarios not before it. SmalI-minded bigots will find no recourse in committing discriminatory acts, expecting to be sheltered from Unruh Act prohibitions by false cry of Free Speech. No court evaluates Free Speech rights against the interest of the State in enforcing public access laws in vacuum, without regard to circumstances, history, culture, social norms, and the application of common sense. Here, Miller’s desire to express through her wedding cakes that marriage is sacramental commitment between man and woman that should be celebrated, while she will not express the same sentiment toward same-sex unions, is not trivial, arbitrary, nonsensical, or outrageous. Miller is expressing a belief that is part of the orthodox doctrines of all three world Abrahamic religions, if not also part of the orthodox beliefs of Hinduism and major sects of Buddhism. That Miller’s expression of her beliefs is entitled to protection is affirmed in the opinion of Justice Kennedy in Obergefell v. Hodges (2015) wherein the Court established that same-sex marriages are entitled to Equal Protection. Therein, the Court noted: “[f]inally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.”
“Furthermore, here the State minimizes the fact that Miller has provided for an alternative means for potential customers to receive the product they desire through the services of another talented baker who does not share Miller’s belief. Miller is not the only wedding cake creator in Bakersfield.”
“The fact that Rodriguez-Del Rios feel they will suffer indignity from Miller’s choice is not sufficient to deny constitutional protection. Hurley [the case upheld the right of St. Patrick’s Day Parade organizers to exclude pro-gay-rights speech -EV] established that the State’s interest in eliminating dignitary harms is not compelling where, as here, the cause of the harm is another person’s decision not to engage in expression. The Court there recognized that “the point of all speech protection … is to shield just those choices of content that in someone’s eyes are … hurtful.” An interest in preventing dignitary harms thus is not a compelling basis for infringing free speech. (See Texas v. Johnson (1989); see also Hustler Magazine, Inc. v. Falwell (1988).)”
* * *
“I don’t think this analysis is correct, for reasons Dale and I gave in our amicus brief: While creating photographs, videos, and text would be constitutionally protected speech (so we support the right of, for instance, photographers not to photograph same-sex weddings), creating wedding cakes with no text or symbolic design on them is not. (In this case, the couple selected a preexisting design, and “did not want or request any written words or messages on the cake.”) Still, I thought the opinion was noteworthy.”
What has become of Mr. Harder’s cease & desist demand?
Your publication of the false/baseless statements about Mr. Trump gives rise to, among other claims, defamation by libel, defamation by libel per se, false light invasion of privacy, tortious interference with contractual relations, and inducement of breach of contract. — Charles Harder, Jan. 4, 2018
Was it a bluff? Perhaps a publicity move? Perhaps it was done in response to his impatient client’s demand for some threat of legal action? Or was it mainly an attempt to discredit the news about an insider’s look at the Trump world, both before and after the election?
One more far more question: What has become of the cease and desist demand sent by President Trump’s lawyer Charles J. Harder to Michael Wolff and his publisher Henry Holt?
Recall that on January 8, 2018, their lawyer, Elizabeth A. McNamara, refused to halt publication of Fire and Fury: Inside the Trump White House or to issue any retraction or apology. To quote Ms. McNamara: “My clients do not intend to cease publication, no such retraction will occur, and no apology is warranted.”
As far as I can tell, Mr. Harder has yet to take any action beyond his January 4, 2018, letter to the president of Henry Holt and Michael Wolff.
It is unthinkably difficult to imagine a president suppressing publication of a book criticizing him. — Floyd Abrams, Jan. 4, 2018
Related
→ John Santucci, Trump attorney sends Bannon cease and desist letter over ‘disparaging’ comments, ABC News, Jan. 4, 2018 (“This law firm represents President Donald J. Trump and Donald J. Trump for President, Inc. On behalf of our clients, legal notice was issued today to Stephen K. Bannon, that his actions of communicating with author Michael Wolff regarding an upcoming book give rise to numerous legal claims including defamation by libel and slander, and breach of his written confidentiality and non-disparagement agreement with our clients. Legal action is imminent.”) (emphasis added)
Headline: “Man sues claiming First Amendment right to give cops the finger”
In a recent issue of The Hill, Morgan Gstalter reports that “an Indiana man who was ticketed for flashing a rude hand gesture at an Indiana State Police trooper filed a federal lawsuit last week claiming his constitutional rights protect his freedom of expression.”
“Mark May flashed a cop the middle finger in August after he said Indiana State Police Master Trooper Matte Ames cut him off to pull over another driver, according to the Tribune Starin Terre Haute.”
“Ames then pulled May over and gave him a ticket for provocation, a Class C infraction that carries a penalty of a fine up to $500.”
“In a lawsuit filed in the Southern District of Indiana by the American Civil Liberties Union of Indiana, May argues his gesture is protected by the First Amendment. . . .”
Interview with ACLU’s David Cole on Protecting First Amendment Freedoms
We are second to none in defending the First Amendment. But in [the Masterpiece Cakeshop] case, we don’t think the First Amendment claims are meritorious. — David Cole
→Re Masterpiece Cakeshop v. Colorado Civil Rights Commission: “The bakery, which chose to open its doors to the public, cannot invoke a First Amendment right to discriminate. No one has to become a public accommodation, but once you make that choice, you can’t deny service to citizens because of who they are. The First Amendment would be implicated if the government singled out particular messages and either prohibited or compelled them, but that’s not what the Colorado law at issue here does: It applies to all businesses open to the public, regardless of whether they are “expressive” or not, whether they sell books or nails. And I don’t think any of us would want to live in a world in which businesses, no matter how expressive, could put up signs saying ‘We don’t serve gays’ or ‘Whites only.'”
→ Did representing Jason Kessler and the neo-Nazis at Charlottesville give you pause? “These are challenging cases. When we represent someone whose point of view is diametrically opposed to ours, who seeks to undermine the rights we are trying to defend with vulnerable groups, that creates a tension for the ACLU.”
“We’re a big tent organization. We defend the rights of people to speak regardless of how offensive their views are, regardless of whether we’re in agreement with them if they’re pro-equality or anti-equality. That’s an important part of who we are—and it’s an important part of what the First Amendment is.”
→ There’s more, much more, but you’ll have to read the full interview to see iy.
Dershowitz reviews Must We Defend Nazis?
Prof. Alan Dershowitz(credit: The Harvard Crimson)
When I was a student during the days of McCarthyism, a book arguing for the censorship of extremist hate speech would have been titled “Must We Defend Communists?” Many of the arguments made by Richard Delgado and Jean Stefancic in “Must We Defend Nazis?” are similar to those that would have been made in my hypothetical book: Free speech is not absolute; it must be balanced against other societal values; much harm can come from communism; communists don’t support our free speech, so why should we support theirs; communism is evil, and there is no good reason to defend evil speech; communist propaganda lies at the periphery of the First Amendment, not at its core; communist speech incites violence; those who defend communist speech are complicit in the evils of communism. . . .
Dershowitz is especially troubled by how the authors characterize Nazi hate speech:
Among the book’s most fundamental flaws is its placement of Nazi hate speech at the periphery of the First Amendment, when by any reasonable definition it sits at its very core. Nude dancing, hard-core porn, and commercial advertising may be peripheral to the political concerns of the First Amendment. Still, according constitutional protection to these genres of speech may be necessary to build a wall around the core to protect it from the slippery slope. But what could be more central than advocacy by the Nazi Party of a political program for America? Nazi speech is no more peripheral than communist speech. It may be more hateful and more dangerous, but to call it peripheral is to misunderstand the essential purpose of the First Amendment. . . .
YouTube: Judge Kuntz interviews Strossen on Hate Speech
→ A public conversation in Salisbury, CT, hosted by “Noble Horizons” but open to the public.
Va. L. Rev. Online Symposium on Hate Speech
On August 11 and 12, 2017, neo-Nazis and Klansmen came to Charlottesville to hold a rally meant to assert themselves as a force in American society. That event, and the President’s reaction to it, raised the disturbing possibility that for the first time in more than fifty years, white supremacy could be a matter of debate at the highest levels of American politics. This Foreword asks what legal scholarship has to contribute in times like these. It also introduces a partial answer: a group of student and faculty pieces analyzing some of the many difficult legal questions the rally raised. — Farah Peterson
Abstract: “In this timely book, a Pulitzer Prize-winning reporter trains an autobiographical lens on a moment of remarkable transition in American journalism. Just a few years ago, the mainstream press was wrestling with whether labeling waterboarding as torture violated important norms of neutrality and objectivity. Now, major American newspapers regularly call the president of the United States a liar. Clearly, something has changed as the old rules of “balance” and “two sides to every story” have lost their grip. Is the change for the better? Will it last?”
Prof. Linda Greenhouse
“In Just a Journalist, Linda Greenhouse—who for decades covered the U.S. Supreme Court for The New York Times—tackles these questions from the perspective of her own experience. A decade ago, she faced criticism from her own newspaper and much of journalism’s leadership for a speech to a college alumnae group in which she criticized the Bush administration for, among other things, seeking to create a legal black hole at Guantanamo Bay—two years after the Supreme Court itself had ruled that the detainees could not be hidden away from the reach of federal judges who might hear their appeals.”
“One famous newspaper editor expressed his belief that it was unethical for a journalist to vote, because the act of choosing one candidate over another could compromise objectivity. Linda Greenhouse disagrees. Calling herself “an accidental activist,” she raises urgent questions about the role journalists can and should play as citizens, even as participants, in the world around them.”
→ Abstract: “Supreme Court decisions involving the constitutional rights of students in the nation’s public schools have consistently been most controversial. From racial segregation to unauthorized immigration, from economic inequality to public prayer and homeschooling: these are but a few of the many divisive issues that the Supreme Court has addressed vis-a-vis elementary and secondary education. The Schoolhouse Gate gives a fresh, lucid, and provocative account of the historic legal battles waged over education. It argues that since the 1970s, the Supreme Court through its decisions has transformed public schools into Constitution-free zones. Students deriving lessons about citizenship from the Court’s decisions over the last four decades would conclude that the following actions taken by school officials pass constitutional muster: inflicting severe corporeal punishment on students without any procedural protections; searching students and their possessions, without probable cause, in bids to uncover violations of school rules; engaging in random drug testing of students who are not suspected of any wrongdoing; and suppressing student speech solely for the viewpoint that it espouses. Taking their cue from such decisions, lower courts have validated a wide array of constitutionally dubious actions, including repressive student dress codes; misguided “zero tolerance” disciplinary policies; degrading student strip searches; and harsh restrictions on off-campus speech in the internet age. Justin Driver dramatically and keenly surveys this battlefield of constitutional meaning and warns that impoverished views of constitutional protections will only further rend our social fabric.”
“In his opinion in Hand v. Scott, United States District Judge for the Northern District of Florida Mark Walker declared Florida’s re-enfranchisement scheme for persons convicted of felonies to be restored their right to vote unconstitutional under both the First Amendment and the Fourteenth Amendment’s Equal Protection Clause.”
“The court’s decision was on cross-motions for summary judgment and Judge Walker opens his opinion by describing the Florida scheme:
“Florida strips the right to vote from every man and woman who commits a felony. To vote again, disenfranchised citizens must kowtow before a panel of high-level government officials over which Florida’s Governor has absolute veto authority. No standards guide the panel. Its members alone must be satisfied that these citizens deserve restoration. Until that moment (if it ever comes), these citizens cannot legally vote for presidents, governors, senators, representatives, mayors, or school-board members. These citizens are subject to the consequences of bills, actions, programs, and policies that their elected leaders enact and enforce. But these citizens cannot ever legally vote unless Florida’s Governor approves restoration of this fundamental right. Florida’s Executive Clemency Board has, by rule, unfettered discretion in restoring voting rights.’ . . . ”
“I blogged recently (see here and here) about the contempt proceedings in the Barley House controversy, where YouTube personality FaZe Banks (Richard Bengtson) was facing a speech-restrictive court order based on a secret settlement agreement, and the threat of contempt sanctions for posting a video that allegedly violated that agreement. With the help of Cleveland lawyer Patrick Kabat (Chandra Law), I moved to intervene to get the agreement disclosed — and I’m delighted to report that the District Court just agreed with us, and filed the agreement in the publicly available court records (here):”
“[B]ecause Plaintiffs asked the Court to enforce the confidential settlement agreement, the agreement was discussed in detail during the contempt proceeding, and the parties failed to cite a single case in opposition to the Motion of Eugene Volokh to Intervene and Gain Access to a Judicial Document, nor did they indicate that disclosure of the agreement would harm them in any way, the Court hereby GRANTS the Motion (Doc #: 29). The Clerk of Court shall file the agreement as an exhibit to this Order.'”
“Private organizations often get a permit to put on events on public streets or in a public park, and open the event to the public generally. When that happens, courts generally don’t let the police eject people who go to the event to express their own political views, even when the views criticize the organization or its patrons, and even if the organization wants the speakers ejected. The police can enforce content-neutral speech restrictions, such as limits on sound amplification. And if a group gets a permit to have a closed event, which only ticketholders can attend (especially common for events in government-run convention centers, but in principle possible even in parks or on sidewalks), the organization can select who gets the tickets. But if the event is generally open to all comers, people who come to speak can’t be ejected.”
Episode 1, Jacob Mchangama , Who Dares to Speak?, Clear & Present Danger series (FIRE)
Demosthenes
→Abstract: The democracy of Ancient Athens was the birthplace of equal and uninhibited speech. Or Isegoria and parrhesia to the Athenians. Jacob Mchangama guides you through how oratory was central to the idea and practice of Athenian democracy. What Athenian style free speech entailed for ordinary citizens, comedians, philosophers, and orators. How oligarchic coup d’etats twice drowned Athenian free speech in blood and repression. The extreme methods used by Demosthenes to become the greatest orator of antiquity. And of course: the trial of Socrates: Was he a martyr for free speech or an impious and seditious enemy of democracy? So the following episode is an attempt to bring to life a pivotal but often forgotten period as we embark on the first stop of what I hope will be a long journey together through the history of free speech. Stay up to date with Clear and Present Danger on the show’s Facebook and Twitter pages, or visit the podcast’s website at freespeechhistory.com.
Today in First Amendment History
Samuel Roth(credit: Booktryst)
“Samuel Roth was a publisher who had many run-ins with the law because he specialized in erotica and unauthorized publications of copyrighted works. He was convicted on this day of distributing obscene materials in violation of federal law. He appealed his conviction to the Supreme Court, and the resulting decision, Roth v. United States, on June 24, 1957, was the most important post-World War II Court decision on whether obscenity is protected by the First Amendment.”
“Samuel Roth had a life-long career as a pornographer and served jail or prison terms several times. In the 1920s he became a pariah in literary circles for publishing an illegal bootleg version of James Joyce’s Ulysses.”
Carpenter v. United States (Whether the warrantless seizure and search of historical cell phone records revealing the location and movements of a cellphone user over the course of 127 days are permitted by the Fourth Amendment.)
Free-Speech Related Cases: Cert. Pending
Blagojevich v. United States (When the Government prosecutes a public official for soliciting campaign contributions in alleged violation of the Hobbs Act or other federal anti-corruption laws, must the Government prove the defendant made an “explicit promise or undertaking” in exchange for the contribution, McCormick v. United States (1991) (emphasis added), as five circuits require, or “only . . . that a public official has obtained a payment . . . knowing that [it] was made in return for official acts,” Evans v. United States (1992), as three other circuits hold?)
The bigot is not a stand-in for Tom Paine. . . . Reality is not paradoxical. Our answer to the question, does defending Nazis really strengthen the system of free speech, is . . . generally no. Sometimes, defending Nazis is simply defending Nazis. –– Delgado & Stefancic
Professor Shannon Gilreath kindly accepted my invitation. Gilreath is a Professor of Law and Professor of Women’s, Gender, and Sexuality Studies at Wake Forest University. He is the author of The End of Straight Supremacy (2011), in which he argues that anti-equality propaganda is incompatible with the right to equality enshrined in the Fourteenth Amendment. His reply is set out below (an invitation has been extended to Professor Dershowitz to respond).
______ REPLY ______
Must We Defend Nazis? is a timely update to Richard Delgado and Jean Stefancic’s now classic theory on equality and freedom of expression. Their theory has influenced a generation of lawyers to reconceptualize so-called hate speech, not for the ideas it expresses but for the injury—the discrimination—it effectuates. Once this perspective is understood, the old canard that we must “protect the ideas we hate” falls apart.
Delgado and Stefancic do not advocate the suppression of ideas or viewpoints, but rather the responsible regulation of certain types of speech as action—as actually doing the material discrimination they are designed to do. Their theory is not designed to shut down civil dialogue or to safeguard fragile feelings. It is about inequality and the role a narrowly-defined class of speech plays in creating and perpetuating inequality.
Professor Shannon Gilreath
In his review, Professor Alan Dershowitz instead worries about majoritarian condemnation of some ideas as “evil” and what perils to democracy might follow. None of the examples he offers is even remotely related to the kind of equality practice in speech that Delgado and Stefancic propose.
The case for “reasonable regulations”
First, he suggests that Delgado and Stefancic’s theory may support the silencing of activists who argue for Israel’s right to exist. But nothing in the book supports a heckler’s veto on political discourse. And there is definitely no support for anti-Semitic harangue dressed up as anti-Zionist critique. This is not to say that such things aren’t happening on some campuses. It is merely to point out that Delgado and Stefancic in no way support it or condone it. In fact, Professor Delgado and I collaborated on a symposium to address contemporary problems in free speech, and one of the issues included at Delgado’s suggestion was “the new anti-Semitism,” as Kenneth Marcus calls it, that is overtaking some campuses in the name of free expression.
Professor Jean Stefancic
In reality, Delgado and Stefancic offer a First Amendment theory that actually would allow reasonable regulation of anti-Semitic speech in ways that promote the equality interests of American Jews. The ACLU’s absolutist position instead prioritizes Nazis—a fact Dershowitz admits by his insistence that Nazi speech is at the core of the First Amendment. For Delgado and Stefancic, a commitment to equality lies at the core of a First Amendment utilized to operationalize the equality that, thanks to the Fourteenth Amendment, is at the heart of the Constitution itself.
When “neutral” is not neutral
Dershowitz prefers “neutral” speech regulations, dismissing the authors’ warning that such principles do little for the vulnerable in a system that pretends majority and minority start from the same position. He cites “time, place, and manner” restrictions. Such limitations may work if the question really was one of “hurt feelings,” as in regulations on funeral picketing, for example. They do nothing to deal with speech that produces discrimination at a systematic level. For example, a poster demanding that “Blacks Go Back to Africa” permitted in the common area of a dorm but prohibited to be nailed to the door of a black student’s dorm room is an absurd distinction. The discrimination happens regardless.
Professor Richard Delgado
Contrary to the ACLU position of “more speech,” this kind of message isn’t designed to encourage a civil political discussion on race relations. It is designed to frighten and silence. Similarly, a burning cross that is confined to the private property of a white supremacist, as in Virginia v. Black, still produces the inherent injury of discrimination through fear and intimidation, and those who are disposed to enact the harms it represents are buoyed in their desires by the display. The Court’s refusal to see the systemic meaning of such a display was farcical.
The difference in approach from Europe is, I think, explained by the fact that a majority of Americans, unlike Europeans, have never had to grapple first-hand with the kind of violence and misery anti-equality speech can produce. Public displays of anti-Semitic “news” and cartoons (Stürmerkasten) in Nazi Germany served both to cow Jews and to recruit perpetrators. It cannot happen here is too easy an attitude to take up. In fact, since Donald Trump took office, crimes of physical violence against racial minorities and gays and lesbians have risen sharply—over 400% for gays and lesbians alone (see here also). The sharpest spike in university campus crimes has been against Jewish students.
Dr. King & the Klan
Finally, Dershowitz supposes that the triumphs of Martin Luther King would have been impossible in a system other than the absolutist one he defends. This particular jab seems especially dishonest, since Brandenburg v. Ohio, establishing our recent, Klan-friendly theory of free speech, wasn’t decided until a year after King’s death. Suppressed in Dershowitz’s evenhanded treatment of the speech of Nazis and Martin King is the reality that Nazis promote inequality for minorities and King was promoting equality. This is no small detail for Delgado and Stefancic who underscore that ours is a constitutional system decidedly not neutral on equality. They offer us a theory of speech that prioritizes equality as a substantive right. And the guidance they provide may be more critical today than ever before.
“Polish President signs controversial Holocaust bill into law”
The bill’s backers say talking about Polish complicity in Nazi genocide is a form of group defamation.
President Andrzej Duda (credit Janek Skarzynski/AFP/Getty Images)
This from James Masters over at CNN: “Polish President Andrzej Duda signed Poland’s controversial new Holocaust bill late Tuesday ahead of it being assessed by the country’s Constitutional Tribunal. The law would make it illegal to accuse the nation of complicity in crimes committed by Nazi Germany, including the Holocaust. It would also ban the use of terms such as “Polish death camps” in relation to Auschwitz and other such camps located in Nazi-occupied Poland….”
→ This from Jacob Sullum writing in Reason: “In Poland, as in several other European countries, it is a crime to deny the Holocaust. Soon, thanks to [the new law . . . will make it] a crime to discuss the Holocaust too frankly.”
“The . . . ban on references to Polish complicity in Nazi genocide, which has provoked outrage in Israel and around the world, may seem inconsistent with the ban on Holocaust denial. But the two taboos are of a piece with each other and with Poland’s prohibition of ethnic insults—a fact that should give pause to American fans of European-style speech regulation.”
“The Polish [law] makes it a crime, punishable by fines and up to three years in prison, to accuse ‘the Polish nation, or the Polish state, of being responsible or complicit in the Nazi crimes committed by the Third German Reich.’ The legislation was motivated largely by anger at the common use of phrases like ‘Polish death camps,’ which could be read to mean that the war crimes committed by Germans in occupied Poland were a project of the Polish government.”
“‘German Nazi crimes are attributed to Poles,” Deputy Justice Minister Patryk Jaki complained . . . . ‘And so far the Polish state has not been able to effectively fight these types of insults to the Polish nation.'”
“Some of these ‘insults’ happen to be true, since part of ‘the Polish nation’ was “complicit in the Nazi crimes.’ Poles saved Jews, but Poles also murdered Jews, under Nazi instruction and on their own initiative. . . .”
“New Slate Of Commissioners Should Elevate FTC’s Consideration of First Amendment”
This from Glenn G. Lammi writing in Forbes: “The U.S. Senate Committee on Commerce, Science, and Transportation has scheduled a hearing for . . . February 14, 2018, on the nominations of a new Chairman and three new Commissioners to the Federal Trade Commission (FTC). In recent years, FTC has become the primary national regulator of consumer data privacy and security, a responsibility that accords the Commission a staggering amount of influence over an American economy increasingly fueled by information.”
“When utilizing that authority over how businesses treat consumer data, the Commission has accorded little or no regard to the First Amendment. Data is speech, a reality that the incoming Chairman and Commissioners must incorporate into consumer-protection enforcement under § 5 of the Federal Trade Commission Act. . . ”
Paul M. Smith on Conservatives and the First Amendment
Paul M. Smith
Joseph P. Williams, writing in a recent issue of US News & World Report, quoted noted appellate lawyer Paul M. Smith several times in his article titled “The Right’s First Amendment Push.” Here are some of those quotes:
“‘If you go back three decades or more, conservative justices tended to be very reluctant to enforce the First Amendment, accusing the liberals of being activists on that constitutional provision and others,’ Smith writes.”
“Now that the political balance of power has shifted to the right, Smith says, ‘[the court’s] conservative justices tend to be every bit as aggressive in using their authority to enforce the Constitution as the liberal justices, though very often in different contexts.'”
“Nevertheless, ‘on the other hand, there are [some] cases in which it is the liberal wing of the Court that embraces the First Amendment over the opposition of the conservative wing,’ Smith says. ‘That seems like a likely divide on the pending gerrymandering cases’ in which Democrats are challenging Republicans for rigging political districts to permanently shut them out of power and restrict the political speech of their liberal constituencies.”
At a Georgetown conference about the upcoming court term last week, Smith told an audience of law students and journalists about arguing a similar union-dues-vs.-free-speech case before the high court three years ago. He told the justices that fair-share fees don’t equal union membership – ‘it’s only money, and nobody thinks it means that they believe in the union’ – when Kennedy threw him a curveball. ‘I get to the end of the argument, and Justice Kennedy says, ‘You mean to tell me people give up their first amendment rights when they go to work for the government?’ Smith said.”
Friends of the Court — Volokh & Shapiro: Sometimes United, Sometimes Not
Eugene Volokh and Ilya Shapiro are busy filing briefs in a string of freedom of expression cases. Typically they agree, sometimes not. Yes, it happens . . . even when the claim arises in a First Amendment freedom of expression case. Simply consider the cases and briefs mentioned below.
This Court must draw a line that properly respects both the First Amendment rights of those who are truly being compelled to create speech, and the legitimate interests of states that are trying to protect their citizens from discrimination. Bakers, including bakers of wedding cakes, are on the constitutionally unprotected side of the line.
Ilya Shapiro, counsel of record for the Petitioners, filed an amicus brief on behalf of the Cato Institute, Reason Foundation, and the Individual Rights Foundation. In that brief they argued:
[W]edding cakes are an expressive art form that should be given full First Amendment protection.
II>T-Shirt Case: Volokh & Shapiro United
In AAron Baker for Gay & Lesbian Services Org., et al v. Hand On Originals, Inc. (pending in Ky. Supreme Ct), Professor Volokh and Christopher L. Thacker filed an amicus brief on behalf of the Cato Institute in support of the Appellee, a company that refused to print t-shirts promoting a gay-pride event (See Ilya Shapiro’s account here). In relevant part they argued:
Printers, like other speakers and like the drivers in Wooley, have a First Amendment right to choose which speech they will help disseminate and which they will not. The district court’s grant of summary judgment, which correctly recognizes and protects this right, should therefore be upheld.
III>Wedding Photographer Case: Volokh & Shapiro Again United
The case is Telescope Media Group v. Lindsey – Alliance Defending Freedom (pending in 8th Cir.). The issue in the case is whether a state law requirement that they serve same-sex couples seeking wedding video services violates the Appellants’ First and Fourteenth Amendment rights to free speech, expressive association, free exercise, equal protection, and due process. Here, too Volokh and Cato were on the same side, arguing in an amicus brief in favor of the First Amendment claim. In that brief (Jonathan R. Whitehead, counsel of record) they argued:
Filmmakers, like others engaged in commercial expression—and like the drivers in Wooley v. Maynard —have a First Amendment right to choose which speech they will disseminate.
IV> The Union Agency Shop Case: Volokh & Shapiro Again on Different Sides
In Janus v. American Federation of State County, and Municipal Employees the issue is whether Abood v. Detroit Board of Education should be overruled and public-sector “agency shop” arrangements invalidated under the First Amendment. Here again, there is a division in the ranks with Shapiro taking a strong anti-union pro-First Amendment stance in his amicus brief while Volokh is on the union’ side in the amicus brief he co-authored with Professor William Baude:
The alleged deficiencies of Abood’s solution to the First Amendment problem of compelled funding of private speech can only justify overruling that case if the First Amendment problem actually exists. To conclude that Abood should be overruled because agency fees violate the First Amendment, one must do more than simply critique the internal logic of Abood. One must create what was absent in Abood: a justification, from first principles, for a First Amendment right not to subsidize speech with which one disagrees. If all that can be found to justify this supposedly “bedrock principle” is circular citations and ipse dixit, then Abood was not wrongly decided and should not be overturned.
Masterpiece Cakeshop Case Discussed & Debated at 1-A Salon
Sarah Warbelow, Ilya Shapiro, Steve Wermiel, Robert Corn-Revere & John Paul Schnapper-Casteras
Steve Wermiel moderated the discussion between Robert Corn-Revere and Ilya Shapiro on the baker’s side and JP Schnapper-Casteras (formerly of LDF & now in private practice) and Sarah Warbelow on the commission’s side.Professor Steve Wermiel moderated the discussion between Robert Corn-Revere and Ilya Shapiro on the baker’s side and JP Schnapper-Casteras and Sarah Warbelow on the commission’s side.
→ A video of the event will be posted soon on the Salon’s website.
→ ht: to Nico Perrino and Aaron Reese from FIRE for doing all the great video work (and pics, too).
“Court Bars Univ. of Washington from Charging College Republicans $17,000 Security Fee”
Protestors against the Patriot Prayer rally at U.W.
(Steve Ringman/The Seattle Times)
This from Professor Volokh writing in The Volokh Conspiracy (Reason.com):
The College Republicans have organized a “Freedom Rally,” scheduled to take place in Red Square on the afternoon of Saturday, February 10, 2018, and to feature Joey Gibson, the leader of the controversial, conservative political group Patriot Prayer. Based upon factors including the time and location of the event, the estimated number of attendees, and the responses at prior events featuring Mr. Gibson and Patriot Prayer, the UW has determined that the Freedom Rally requires enhanced security, including the presence of additional officers from the UW Police Department. Pursuant to its Security Fee Policy, the UW seeks from the College Republicans an estimated $17,000 as reimbursement for its security costs. The UW does not require that the fee be paid in advance, but will calculate and assess the total amount owed following the event…. Based upon the pleadings filed at this stage in the proceedings, there is no dispute that
Red Square is a limited public forum…. In a limited public forum, restrictions on speech must be reasonable and viewpoint neutral. A reasonable restriction is one that is “based on a standard that is definite and objective.” A viewpoint neutral restriction is one that does not suppress speech “merely because public officials oppose the speaker’s view.” The Court finds that the Security Fee Policy is neither reasonable nor viewpoint neutral.
First, the Security Fee Policy fails to provide “narrowly drawn, reasonable and definite standards,” and thereby gives administrators broad discretion to determine how much to charge student organizations for enhanced security, or whether to charge at all. See Forsyth County v. Nationalist Movement (1992). As in Forsyth, UW administrators are “not required to rely on any objective factors,” and “need not provide any explanation for [their] decision[s].” Instead, administrators “must necessarily examine the content of the message that is conveyed, estimate the response of others to that content, and judge the number of police necessary to meet that response. The fee assessed will depend on the administrator’s measure of the amount of hostility likely to be created by the speech based on its content.”
Apparently, the $17,000 fee assessed upon the College Republicans reflected the UW Police Department’s estimate that the Freedom Rally would require 24 officers over 4.5 hours, at an hourly rate of $157.52 per officer. While the Chief of Police offers a lengthy discussion of the “objective facts” he considered (e.g., the fact that Mr. Gibson was assaulted and pepper sprayed at recent rallies, the fact that Patriot Prayer has “members who have engaged in open carry in the past,” etc.), nowhere does he explain how these facts support his determination as to the number of officers needed. Nor does he identify the “open-source websites” that the UW Police Department referenced to corroborate information about the event. On this record, the Court cannot conclude that the estimated $17,000 fee is the product of a “definite and objective” process.
Second, the Security Fee Policy directs administrators to assess fees based upon the “history or examples of violence, bodily harm, property damage, significant disruption of campus operations” and violations of “the campus code of conduct and state and federal law.” Administrators relying on instances of past protests, either for or against a student organization or speaker, will inevitably impose elevated fees for events featuring speech that is controversial or provocative and likely to draw opposition. Assessing security costs in this manner impermissibly risks suppression of “speech on only one side of a contentious debate.” …
“Forsyth indeed expressly holds that the government can’t calculate security fees based on the expected hostility of some listeners to the speaker’s message. The only question is whether a different rule would apply to a ‘limited public forum’ (such as university property that the government needn’t open to student-invited speakers in the first place) as to a ‘traditional public forum’ like the streets and sidewalks involved in Forsyth, where the government must generally allow public speech.”
“But even in a limited public forum, viewpoint-neutrality is required. And Matal v. Tam (the Slants case) strongly suggests that discrimination against speech based on public reaction to its supposedly offensive message is indeed viewpoint discrimination: Justice Alito’s four-Justice lead opinion stated that denying a benefit to speech “that is offensive to a substantial percentage of the members of any group’ ‘is viewpoint discrimination’; Justice Kennedy’s four-Justice concurrence stated that the government “may not insulate a law from charges of viewpoint discrimination by tying censorship to the reaction of the speaker’s audience.’ See also Sonnier v. Crain (5th Cir. 2010) (treating Forsyth as applicable to speech on university campuses). Thanks to Annie Wagner for the pointer.”
University of California, Berkeley (Berkeley, Calif.)
Texas State University (San Marcos, Texas)
→ Lifetime Censorship Award: DePaul University (Chicago, Ill.)
Yet Another! Duke Law to Launch First Amendment Clinic
Ray Gronberg at The Herald-Sunreports that “Duke University’s School of Law is adding to a set of legal clinic offerings it has styled as a ‘public interest law firm’ that allows professors and students to take on sometimes controversial clients and causes.”
Professor Jefferson Powell
“Duke Law is poised to launch another clinic, its 12th, this fall semester. It will focus on First Amendment law and has five years’ worth of operational funding on the way from a New York City-based foundation. Professor Jefferson Powell, a U.S. Department of Justice official in the Clinton and Obama administrations, is set to become its director. . . .”
“Powell said Duke Law’s soon-to-retire dean, former U.S. District Court Judge David Levi, has pushed the development of its clinical program because ‘it serves his vision of a legal education that integrates the practical and the professional.'”
Levi helped put the new First Amendment Clinic together after the New York-based Stanton Foundation approached Duke with the idea and offered to pay for it. He ‘persuaded the Stanton Foundation that we could provide the quality representation and legal training they’re looking for,’ Powell said.”
Coming Event: Heritage panel on This Term’s Free-Speech Cases
“A New York-based literary magazine, The Little Review, faced obscenity charges on this day for publishing excerpts from James Joyce’s acclaimed novel, Ulysses. This was the first publication of material from Joyce’s novel in the U.S. In a later case involving a ban on importing the novel, a federal District Court declared the novel not obscene in United States v. One Book Called Ulysses, on December 6, 1933. The Second Circuit Court of Appeals upheld the decision on August 7, 1934. The Ulysses case was one of the most important victories over censorship in the pre-World War II era.”
“Hundreds of people crowded into the courtroom on the first day of the trial. The defense attorney attempted to have the entire offending chapter from Ulyssesread in court. The judge denied the motion, holding that it would offend a young woman in the courtroom. That woman was Jane Heap, editor of The Little Review, which published the chapter. John Sumner of the New York Society for the Suppression of Vice had advised the judge that Ulysses was too “improper to place upon the records” of the court.”
2017-2018 Term: First Amendment Free Expression Cases
Carpenter v. United States (Whether the warrantless seizure and search of historical cell phone records revealing the location and movements of a cellphone user over the course of 127 days are permitted by the Fourth Amendment.)
Free-Speech Related Cases: Cert. Pending
Blagojevich v. United States (When the Government prosecutes a public official for soliciting campaign contributions in alleged violation of the Hobbs Act or other federal anti-corruption laws, must the Government prove the defendant made an “explicit promise or undertaking” in exchange for the contribution, McCormick v. United States (1991) (emphasis added), as five circuits require, or “only . . . that a public official has obtained a payment . . . knowing that [it] was made in return for official acts,” Evans v. United States (1992), as three other circuits hold?)
The [Muller] indictment . . . described how fraudulent Russian accounts on Twitter tried to push real Americans into action. The indictment said the fake Twitter account @March_for_Trump had organized political rallies for Mr. Trump in New York before the election, including a “March for Trump” rally on June 25, 2016, and a “Down With Hillary” gathering on July 23, 2016. — NYT, Feb. 19, 2018
The Muller indictment gives a roadmap for foreign nations to interfere in our elections in ways that don’t violate federal law as the Supreme Court has narrowed it. — Richard Hasen
Below is a short piece I invited Professor Richard Hasen to write for FAN. Beyond his Election Law Blog and many publications, Hasen is also the author of the soon-to-be-released book entitled The Justice of Contradictions: Antonin Scalia and the Politics of Disruption(Yale University Press, March 20, 2018). I will interview Professor Hasen concerning his new book on Tuesday, March 6th, at 6:00 pm at the law offices of Ballard Spahr in Washington, D.C. (E-mail if you would like to attend.)
* * * *
Last week, special counsel Robert Mueller secured a grand jury indictment of 13 Russian nationals for interfering with the 2016 U.S. presidential elections by, among other things, paying for political advertisements promoting Donald Trump for President and opposing Hillary Clinton. The claims were based in part on federal law barring most foreign nationals from spending money to influence U.S elections. But thanks to the First Amendment, some of the activity described in the indictment may not be illegal. More importantly, going forward, the indictment gives a roadmap for foreign nations to interfere in our elections in ways that don’t violate federal law as the Supreme Court has narrowed it. Indeed, if Congress acts to curb future foreign interference, the Court could well face the question whether national security and sovereignty concerns should override the current line it has drawn in campaign finance law between express advocacy and issue advocacy.
Professor Richard Hasen
As I explain in a forthcoming article in the First Amendment Law Review, “Cheap Speech and What It Has Done (to American Democracy),” federal law bars foreign nationals, including foreign governments, from making expenditures, independent expenditures, and electioneering communications in connection with a Federal, State or local election. However, it is at best uncertain whether independent online ads that do not expressly advocate the election or defeat of candidates are covered by the foreign expenditure ban.
For example, one of the ads targeted in the Mueller indictment read: “Hillary is a Satan,” and her crimes and lies had proved how evil she is.” Others promoted and opposed Black Lives Matter issues. Neither likely violated the ban on foreign campaign spending. Foreign political advertising like the Black Lives Matter ads neither mentioning nor showing a candidate for office, likely would not be considered an election ad under current law, which does not cover pure issue advocacy even if intended to influence election outcomes. And the Hillary-Satan ads, though mentioning a candidate, would not be illegal “electioneering communications” under the McCain-Feingold campaign finance law, because they were run on digital platforms rather than on TV, radio, satellite or cable. And they do not contain “express advocacy” because they never urge a vote against Clinton.
Deputy Attorney General Rod Rosenstein announcing release of Muller indictments
Proposed federal legislation such as the “Honest Ads Act,” would extend rules barring foreign spending on television or radio “electioneering communications” to communications via digital outlets like Facebook. That could cover Hillary-Satan ads but not Black Lives Matter ads paid for foreign sources.
If Congress passed a statute purporting to make illegal all or some of the activity Russians engaged in during the 2016 election, such a statute would likely run into First Amendment resistance. After the Supreme Court decided Citizens United v. Federal Election Commission, a 2010 case holding that corporations have a First Amendment right to spend unlimited sums independently to support or oppose candidates for public office, the Court summarily affirmed a lower court decision in Bluman v. Federal Election Commission. Bluman upheld a federal law barring foreign nationals—in the case of Benjamin Bluman, a foreign national working in New York on a temporary work visa—from spending even fifty cents to print and distribute flyers expressly advocating the reelection of President Obama.
Bluman seems to indicate that, despite tensions with the holding in Citizens United that the identity of the speaker does not matter for First Amendment purposes, the government has a compelling interest in banning foreign spending in our elections. “It is fundamental to the definition of our national political community that foreign citizens do not have a constitutional right to participate in, and thus may be excluded from, activities of democratic self-government. It follows, therefore, that the United States has a compelling interest for purposes of First Amendment analysis in limiting the participation of foreign citizens in activities of American democratic self-government, and in thereby preventing foreign influence over the U.S. political process.”
Vladimir Putin
But the Bluman court, in an opinion by D.C. Circuit judge Brett Kavanaugh, narrowly construed the foreign spending ban to cover only express advocacy and not issue advocacy. “This statute, as we interpret it, does not bar foreign nationals from issue advocacy—that is, speech that does not expressly advocate the election or defeat of a specific candidate.”
While this interpretation is not free from doubt—the statute is written broadly to cover all expenditures and not just independent expenditures—it seems like the kind of interpretation likely to be favored by the current Supreme Court. Indeed, it is not clear that the courts would accept a more clearly written foreign spending ban going beyond express advocacy and electioneering communications to cover foreign-funded ads meant to stir social unrest without using candidates’ names or likenesses.
These ads should be covered because they constitute a foreign government’s interference with American self-government. The First Amendment should not stand in the way of protecting our national security and sovereignty.
The case is Nationwide Biweekly Administration, Inc., et al v. Perez (9th Cir. opinion here). The issues presented in the case are:
Whether the state demonstrates a governmental interest sufficient to compel a disclosure or disclaimer simply by positing the goal of preventing commercial speech from being misleading?
Whether characterizing a regulation as imposing a “disclosure” rather than a “restriction” on commercial speech is alone sufficient to trigger less rigorous First Amendment scrutiny?
Whether a compelled commercial disclosure that favors or disfavors a particular speaker requires heightened scrutiny?
Whether a compelled disclosure may be considered purely factual, noncontroversial, and non- burdensome under Zauderer if it disadvantages the speaker’s message or favors incumbent competitors?
This is an excerpt from the cert. petition in the case:
“This case addresses the limits of state authority to dictate how commercial transactions must be described under the commercial speech doctrine. Over the past four decades, this Court has developed a body of law in which different levels of judicial scrutiny apply to restrictions on commercial speech as contrasted with compelled disclosures, but has not clearly explained when the different levels of scrutiny apply. The absence of clarity is most acute in the circumstances presented here, where a regulation might be classified either as a speech restriction or as compelled speech, and the circuit courts are divided on how to answer the questions presented.”
“Nationwide Biweekly Administration, Inc. services help mortgage holders pay off their loans more quickly and thereby save money through reduced interest charges. Its offer letters stated that Nationwide is not affiliated with, sponsored by, or approved by the incumbent lender, but that is not sufficient disclosure under California law. Under a statutory provision sponsored by the banking industry, if Nationwide mentions an existing lender’s name, account number, or mortgage amount, it must also state, in addition to the other disclosures, that its offer is “not authorized” by the current lender.”
“The Ninth Circuit applied the least rigorous level of judicial scrutiny to this requirement and held the First Amendment does not bar its enforcement. The decision implicates questions that have divided the circuits on the proper understanding of the commercial speech doctrine.”
Cal. Law Banning Disclosure of Age of Actors Ruled Unconstitutional
This from Deadline Hollywood: “A U.S. District Court judge has ruled that the State of California’s SAG-AFTRA-backed law making it illegal for the entertainment news site IMDbPro to publish actors’ ages is unconstitutional on First Amendment grounds.”
“A year ago this week, Judge Vince Chhabria granted IMDb an injunction to stop enforcement of AB 1687, which went into effect January 1, 2017. ‘It’s difficult to imagine how AB 1687 could not violate the First Amendment,’ he wrote at the time, adding that the government had not shown how the bill is “necessary” in achieving the goal of preventing age discrimination in Hollywood.”
“[Yesterday], in granting summary judgment in IMDb.com v. Xavier Bacerra, Chhabria wrote: ‘Even if California had shown that the law was passed after targeted efforts to eliminate discrimination in the entertainment industry had failed, the law is not narrowly tailored. For one, the law is underinclusive, in that it bans only one kind of speaker from disseminating age-related information, leaving all other sources of that information untouched. … Even looking just at IMDb.com, the law requires IMDb to take down some age-related information – that of the members of its subscription service who request its removal – but not the age-related information of those who don’t subscribe to IMDbPro, or who don’t ask IMDb.com to take their information down. The defendants have not shown that partially eliminating one source of age-related information will appreciably diminish the amount of age discrimination occurring in the entertainment industry.’ . . .”
Forthcoming Bollinger&Stone Book
Title: The Free Speech Century (Fall 2018, Oxford University Press)
“As suggested in our title, The Free Speech Century, this volume commemorates the 100th anniversary of the Supreme Court’s first decisions interpreting the First Amendment’s guarantee that “Congress shall make no law . . . abridging the freedom of speech, or of the press.” Over the past century, we have seen an extraordinary evolution in the ways in which the Court has given meaning to that guarantee. Through a series of false starts, shifting doctrines, and often controversial and surprising outcomes, the justices have struggled to fulfill the promise of that guarantee. In so doing, they have exemplified Justice Oliver Wendell Holmes’ insight in 1919 that “all life is an experiment” – including the constitutional guarantee of free speech.”
“To explore the past, present, and future of this First Amendment “experiment,” we have convened a group of truly extraordinary scholars to examine The Free Speech Century, and beyond. . . .”
Contents
Dialogue: Lee C. Bollinger & Geoffrey R. Stone
Part I: The Nature of First Amendment Jurisprudence
Vincent A. Blasi — Rights Skepticism and Majority Rule at the Birth of the Modern First Amendment
Frederick Schauer — Every Possible Use of Language?
Laura Weinrib — Rethinking the Myth of the Modern First Amendment
Heather K. Gerken — The Discursive Benefits of Structure: Federalism and the First Amendment
Part II: Major Critiques and Controversial Areas of First Amendment Jurisprudence
Floyd Abrams — Citizens United: Predictions and Reality
Lawrence Lessig — On the Legitimate Aim of Congressional Regulation of Political Speech: An Originalist View
Robert C. Post — The Classic First Amendment Tradition Under Stress: Freedom of Speech and the University
David A. Strauss — Keeping Secrets
Catharine A. MacKinnon — The First Amendment: An Equality Reading
Cass R. Sunstein — Does the Clear and Present Danger Test Survive Cost-Benefit Analysis?
Professor Geoffrey Stone
Part III: The International Implications of the First Amendment
Albie Sachs — Reflections on the Firstness of the First Amendment
Tom Ginsburg — Freedom of Expression Abroad: The State of Play
Sarah H. Cleveland — Hate Speech at Home and Abroad
Part IV: New Technologies and the First Amendment of the Future
Emily Bell — (forthcoming)
Monika Bickert — Defining the Boundaries of Free Speech on Social Media
Tim Wu — Is the First Amendment Obsolete?
Epilogue: Lee C. Bollinger & Geoffrey R. Stone
Coming Tomorrow: Cato panel onMinnesota Voters Alliance v. Mansky
Over at Make No Law, Ken White explores the Garcetti v. Ceballos case, the results of which saddle government employees with a tough decision when reporting misconduct to their superiors.
Second Amendment vs First & Fourth Amendment Rights
Our continued refusal to hear Second Amendment cases only enables this kind of defiance. We have not heard argument in a Second Amendment case for nearly eight years. . . . And we have not clarified the standard for assessing Second Amendment claims for almost 10. Meanwhile, in this Term alone, we have granted review in at least five cases involving the First Amendment and four cases involving the Fourth Amendment—even though our jurisprudence is much more developed for those rights. — Justice Thomas dissenting from a denial of cert in Silvester v. Becerra (Feb. 20, 2018)
2017-2018 Term: First Amendment Free Expression Cases
Carpenter v. United States (Whether the warrantless seizure and search of historical cell phone records revealing the location and movements of a cellphone user over the course of 127 days are permitted by the Fourth Amendment.)
Free-Speech Related Cases: Cert. Pending
Blagojevich v. United States (When the Government prosecutes a public official for soliciting campaign contributions in alleged violation of the Hobbs Act or other federal anti-corruption laws, must the Government prove the defendant made an “explicit promise or undertaking” in exchange for the contribution, McCormick v. United States (1991) (emphasis added), as five circuits require, or “only . . . that a public official has obtained a payment . . . knowing that [it] was made in return for official acts,” Evans v. United States (1992), as three other circuits hold?)
His name is J. Michael Murray. He is a criminal defense lawyer out of Ohio. He is also a First Amendment lawyer and past president of the First Amendment Lawyers Association. Mr. Murray Murray is distinguished in The Best Lawyers in America in two separate categories: First Amendment Law and White Collar Criminal Defense, both of which include cases that have taken him to courts throughout the nation.
Among other First Amendment cases, he successfully argued Free Speech Coalition, Inc. v. Attorney General of the U.S. (3rd Cir. 2016) (majority opinion per Smith, J.: “We deem it significant that the Supreme Court has never actually applied the secondary effects doctrine outside the realm of brick-and-mortar purveyors of adult sexually explicit content. We decline to do so now, because any application of the secondary effects doctrine beyond what the Supreme Court has explicitly endorsed would bring this case into direct conflict with Reed’s pronouncement that we cannot look behind a facially content-based law to a benign motive in order to shield the law from the rigors of strict scrutiny.”)
Now Mr. Murray has filed a cert. petition in the case titled Flanigan’s Enterprise, Inc. v. City of Sandy Springs (11th Cir. per curium opinion here), a case that raises some important First Amendment questions. The trhee issues presented in the case are the following:
The secondary effects doctrine of Renton v. Playtime Theatres, Inc. (1986), provides that content-based regulations avowedly aimed at adverse secondary effects associated with businesses offering sexually oriented expression are to be reviewed under intermediate, rather than strict, scrutiny. Does that doctrine survive Reed v. Town of Gilbert, (2015), which holds that facially content-based laws are subject to strict scrutiny, regardless of their content-neutral justifications?
City of Los Angeles v. Alameda Books (2002), is a plurality decision addressing the evidentiary burdens under the secondary effects doctrine. If the secondary effects doctrine survives, does Justice Kennedy’s concurrence constitute the holding of that case as representing the narrowest ground supporting the judgment, as the Sixth, Seventh, Eighth, Ninth Circuits, and prior panels of the Eleventh Circuit have held, or is Justice Kennedy’s concurrence not binding precedent, as the court below concluded?
Marks v. United States (1977), held that “[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds….’” Under Marks:
may a concurring opinion qualify as the holding even if it does not share common reasoning with the plurality opinion, as the Eleventh Circuit has held? United States v. Hughes, 849 F.3d 1008 (11th Cir. 2017) cert. granted, No. 17-155, Dec. 8, 2017, or
must it be “in harmony” with the plurality opinion to qualify as the holding, as the court below held? or
must it be a “logical subset” of the other broader opinions in the case to qualify as the holding, as the Ninth and D.C. Circuits, have held? United States v. Davis, 825 F.3d 1014, 1021 (9th Cir. 2016) (en banc); King v. Palmer, 950 F.2d 771, 781 (D.C. Cir. 1991) (en banc).
(ht: David Keating)
Headline: ‘Free Speech’ Suit Aims to End Twitter’s Political Censorship
This from Ian Mason at Breibart News (Feb. 23, 2018)
Marc Randazza (lead counsel for Plaintiffs)
“A group of free-speech lawyers [led by Marc J. Randazza] filed the most serious legal challenge yet to Twitter’s censorship policies Tuesday in San Francisco County Superior Court, seeking a ruling preventing Twitter from banning users purely on the basis of their views and political associations.”
“The 29-page complaint contends that, under a California legal doctrine that recognizes some private facilities as “public forums,” Twitter may not discriminate against speech on their platform based purely on viewpoint. If successful, it would be the first extension of that doctrine to internet social media platforms and could transform the way free speech is treated online. The suit became all the more relevant Wednesday as Twitter stood accused of locking out thousands of conservatives under the guise of cracking down on ‘Russian bots.'”
The genesis of the suit is Twitter’s November 2017 announcement that they would start banning and sanctioning users based on their offline behavior and associations. On December 18, 2017, Twitter, five years after their top British executive described the company as “the free speech wing of the free speech party,” made good on this threat, ‘purging’ hundreds of mostly right-wing users. Twitter’s new policy refers to association with “violent extremist groups,” and a company blog post claimed, ‘If an account’s profile information includes a violent threat or multiple slurs, epithets, racist or sexist tropes, incites fear, or reduces someone to less than human, it will be permanently suspended.’ . . .”
Former Dow Jones GC to Oversee First Amendment Clinic
From Susan DeSantis writing in the New York Law Journal: “With free speech debates raging on college campuses and journalists under attack, Cornell Law School is launching a First Amendment clinic under the leadership of former Dow Jones General Counsel Mark Jackson.”
Mark Jackson (credit: Black Tie Magazine)
“Jackson, a First Amendment expert and a 1984 graduate of the law school, is overseeing the clinic at the request of Dean Eduardo Peñalver. Jackson hopes the clinic — one of a growing number with such an emphasis — will have a national impact although it will primarily represent clients in upstate New York, western Pennsylvania and eastern Ohio.”
“‘We are really excited to have the Cornell program coming online in the fall.’ said Bruce Brown, a former partner in the D.C. offices of Baker & Hostetler and the executive director of the Reporters Committee for Freedom of the Press. ‘It just feels in so many different ways like our moment.'”
“The Cornell clinic and clinics launching in the fall at Vanderbilt, Duke and Arizona State law schools are needed to counter the Trump administration’s attacks on the press, meet American Bar Association requirements for experiential learning and help state and local journalists who don’t have access to lawyers, Brown said.”
“‘That is a lot of new capacity coming online and that is extremely encouraging to us who’ve been working in this area for the last couple of years,” Brown said.”
“Under the auspices of the Reporters Committee, the Cornell clinic, The Civil Liberties & Transparency Clinic at the University at Buffalo School of Law and other such clinics and nonprofits are forming a nationwide coalition to serve as a clearinghouse for journalists. The coalition is so new, in fact, that it doesn’t yet have a name. . . .”
Like father, like son
“Jackson has his father to thank [for his interest in a free press]. Paul Jackson was a journalist who founded the local newspaper, The Bellmore Chronicle and is best known for his work on The Long Island Independent. He often told his four kids—Mark was second—about his battles for the public’s right to know about school board and sewer committee meetings. Jackson vividly remembers hearing the oft-told story of how city officials had tried to close a city council meeting his father was covering. His father stood up and objected that closing the meeting was a violation of state law and the First Amendment, refusing to leave until he was escorted out. His four children were proud of their dad, who went on to work for Esquire and the New York Post. [Source: Business Edition Super Lawyers by Timothy Harper]
Hasen weighs in on ballot-box-speech-case to be argued today
Today “the Supreme Court will hear arguments in Minnesota Voters Alliance v. Mansky, a case raising the question of whether Minnesota and other states can prevent people from wearing political apparel like a ‘Make America Great Again’ cap or a ‘pussyhat’ to the polling place. . . .”
“Political speech is perhaps the most protected form of speech under the First Amendment, but the right to vote free of intimidation and in tranquility is also compelling. The Supreme Court recognized this point in Burson v. Freeman, which upheld against a First Amendment challenge a 100-foot campaign-free buffer zone around polling places. The case was an unusual one in that a plurality of the court applied “strict scrutiny” to the Tennessee law and still upheld the law. Strict scrutiny is usually said to be “strict in theory and fatal in fact,” but in this case, it was the former.”
“The usual stalwarts of the First Amendment, including Justices Anthony Kennedy and Antonin Scalia, concurred separately to uphold the law. Justice Scalia’s opinion was especially notable, because he recognized that polling places—and the areas around them—traditionally were “nonpublic forums,” places where the government can stop political expression for important reasons so long as the government does not discriminate among viewpoints. If Minnesota had sought to ban Tea Party paraphernalia but allowed “MoveOn.org” T-shirts, that would have clearly been unconstitutional. . . .”
“In many ways this case is even stronger than Burson, because it involves not the area around polling places but polling places themselves, and because voting has only become more contentious in the intervening years. As a Brennan Center brief in Mansky points out, ‘Please I.D. Me’ buttons are part of a political movement raising fears of voter fraud, and such buttons can both intimidate and confuse voters and poll workers. But more generally, a voter should not have to come into the polling place to face a group of voters—or even poll workers—wearing campaign buttons or shirts. No one should feel pressure at the polling place to vote one way or another.”
“The solution here is for state officials to train election workers to recognize political statements and apply the ban evenhandedly. If there is any evidence of viewpoint discrimination—say against Tea Party messages at Democratic-leaning polling places—then it would be time to bring a new lawsuit challenging the law as applied on the ground. . . .”
ACLU’s Lee Rowland discusses campus free speech “realities and myths”
LeeRowland(Tedx Talk)
This from Adam Steinbaugh writing for FIRE (Feb. 26, 2018) “‘My name is Lee Rowland. I’m an unabashed progressive. I’m a skeptic. I’m anti-authoritarian. For all of those reasons, I believe in a robust and indivisible First Amendment.'”
“That’s how Lee Rowland, a First Amendment attorney with the ACLU’s Speech, Privacy, and Technology Project, concludes her TEDx talk at the University of Nevada, Reno — a short discussion of the importance of free speech, on and off campus, that is well worth your time.”
“Rowland summarizes free speech issues confronting society today — from Colin Kaepernick to hate speech — and places them in the context of freedom of expression in higher education. She explains that skepticism of whether constitutional rights are equally distributed is well warranted — and not just those recognized by the First Amendment — but the answer is not to draw back on free speech rights, but instead to ‘ratchet everybody up to that same level of protection for constitutional rights.” It’s ‘our job to make sure that everybody benefits from those rights.’ . . .”
Sign Controversy in N.H. Town
The town of Gilmanton recently warned residents who displayed these signs that they were violating local zoning rules and, potentially, state political advertising disclosure laws. (ACLU of New Hampshire)
Abstract: Shortly after assuming office in January 2017, President Donald Trump accused the press of being an “enemy of the American people.” Attacks on the media had been a hallmark of Trump’s presidential campaign, but this charge marked a dramatic turning point: language like this ventured into dangerous territory. Twentieth-century dictators―notably, Stalin, Hitler, and Mao―had all denounced their critics, especially the press, as “enemies of the people.” Their goal was to delegitimize the work of the press as “fake news” and create confusion in the public mind about what’s real and what isn’t; what can be trusted and what can’t be.
That, it seems, is also Trump’s goal. In Enemy of the People, Marvin Kalb, an award-winning American journalist with more than six decades of experience both as a journalist and media observer, writes with passion about why we should fear for the future of American democracy because of the unrelenting attacks by the Trump administration on the press.
As his new book shows, the press has been a bulwark in the defense of democracy. Kalb writes about Edward R. Murrow’s courageous reporting on Senator Joseph McCarthy’s “red scare” theatrics in the early 1950s, which led to McCarthy’s demise. He reminds us of Bob Woodward and Carl Bernstein’s reporting in the early 1970s that led to President Richard Nixon’s resignation.
Today, because of revolutionary changes in journalism, no Murrow is ready at the battlements. Journalism has been severely weakened. Yet, without a virile, strong press, democracy is in peril.
Kalb’s book is a frightening indictment of President Trump’s efforts to delegitimize the American press―and put the future of our democracy in question.
Abstract: his collection of the best writing from the Free Expression Policy Project, or “FEPP” (2001-2017) highlights events and controversies that continue to resonate in American culture and law. Topics range from loyalty oaths, the Muhammad cartoons, and junk science to the FCC’s censorship of “indecency” on the airwaves, legislative efforts to restrict violent video games, Janet Jackson’s infamous “wardrobe malfunction” at the 2004 Super Bowl, the Walt Disney Company’s suppression of a Michael Moore film, the “Mickey Mouse” law extending the term of copyright, and other copyright issues involving James Joyce, Tennessee Williams, and Fantasy Baseball. From basic questions about the meaning of the First Amendment to specific issues of art censorship, copyright, “harm to minors,” and the structure of the media industry, FEPP’s news reports and commentaries provide lively narratives along with basic grounding in the ironies and complexities of free expression politics and law.
Abstract: Gun rights and control are well-trodden subjects, with prior work supporting the right of citizens to own firearms, discussing the failure of gun control efforts, or warning about or exhorting citizen gun ownership, among other things. Although social media in their many forms have only come to dominate modern U.S. life during the past decade, there has been little academic exploration of gun owner communities on the Internet and social media. How do gun owners use social media? How do they meet other gun owners online? What do they talk about as relates to guns? With a massive and well-organized collection of support material, Guns on the Internet faces these questions with an unbiased approach that seeks a foundation for mutual understanding. The book delves into the question of whether gun-related content on social media platforms should receive free speech protection under the First Amendment to the U.S. Constitution and explores the possibility of using social media to reach common ground between gun rights and gun control supporters.
Guns on the Internet is suitable for students in both undergraduate- and graduate-level courses in criminology and criminal justice as well as those interested in cultural and social movements studies in a more global context.
Abstract: In the 2010 case Citizens United v. Federal Election Commission, the US Supreme Court caught the nation’s attention by declaring that corporations have a First Amendment right to spend unlimited amounts of money independently in political campaigns. The Court rested its five-to-four decision in large part on a concept of speaker-based discrimination. In the Court’s words, “the Government may commit a constitutional wrong when by law it identifies certain preferred speakers.”
Professor Sonja R. West
To drive home its point that speaker-based distinctions are inherently problematic, the Court focused on one type of speaker distinction—the treatment of news media corporations. The Court began by asserting that allowing regulation of corporate speakers but not of non-corporate speakers would permit the government to limit the speech of media corporations—a thought that the majority called “dangerous, and unacceptable.” The campaign finance law in question, however, included an exemption for the news media, thus protecting the rights of the press. But the Court found the media exemption to be problematic because it treated some corporations differently than others. This favoritism of media corporations, in the Court’s view, would also amount to unconstitutional speaker discrimination. To the Citizens United majority, therefore, the news media corporation example settled the question on corporate speech rights. Under this example, a campaign finance law restricting corporate spending that exempted the news media would be unconstitutional speaker-based discrimination, but a law lacking such an exemption would open the door to regulation of the news media.
But was the Citizens United Court correct about the media corporation dilemma? Is the government no more able to regulate the expressive activities of Exxon Mobil Corporation than those of the New York Times Company? Must all speakers be treated uniformly whether or not they are members of the press? And does the First Amendment’s Press Clause (and not just the Speech Clause) play a role in this analysis?
In this Article, I challenge the claim that the First Amendment prohibits the government from treating the press differently than other speakers. Rather than banning such distinctions, the Press Clause traditionally has supported differential treatment of the press. History, court precedent, and legislative practice, moreover, demonstrate how favoritism of press speakers has been condoned and often encouraged.
This debate over the meaning of the Press Clause could have significant ramifications for the future of our free press. A jurisprudential drift of press rights away from protecting core press functions and toward constraining the government’s ability to recognize the unique role press speakers play in our democracy could significantly threaten the vital structural safeguards of the Fourth Estate.
Carpenter v. United States (Whether the warrantless seizure and search of historical cell phone records revealing the location and movements of a cellphone user over the course of 127 days are permitted by the Fourth Amendment.)
Free-Speech Related Cases: Cert. Pending
Blagojevich v. United States (When the Government prosecutes a public official for soliciting campaign contributions in alleged violation of the Hobbs Act or other federal anti-corruption laws, must the Government prove the defendant made an “explicit promise or undertaking” in exchange for the contribution, McCormick v. United States (1991) (emphasis added), as five circuits require, or “only . . . that a public official has obtained a payment . . . knowing that [it] was made in return for official acts,” Evans v. United States (1992), as three other circuits hold?)
President Trump’s Twitter account, @realDonaldTrump, has become an important source of news and information about the government, and an important public forum for speech by, to, and about the President. In an effort to suppress dissent in this forum, Defendants have excluded—“blocked”—Twitter users who have criticized the President or his policies. This practice is unconstitutional, and this suit seeks to end it.
This from the Knight First Amendment Institute: Tomorrow, March 8 at 11 a.m., “the Knight First Amendment Institute at Columbia University and the U.S. Department of Justice will present oral argument in the Knight Institute’s landmark First Amendment challenge to President Trump’s blocking of critics on Twitter. The argument, which is open to the public, will be held before the Hon. Naomi Reice Buchwald at the Daniel Patrick Moynihan U.S. Courthouse in New York City.”
“Last July, the Knight Institute filed suit in the Southern District of New York contending that the @realDonaldTrump account is a “public forum” under the First Amendment and that the president and his subordinates are violating the Constitution by blocking people from the account simply because they have criticized the president or his policies. The suit also contends that the Trump administration is violating the plaintiffs’ First Amendment right to petition the government for redress of grievances.”
Katie Fallow
“The Institute and the Trump administration filed motions for summary judgment in the lawsuit last fall, and this Thursday, Judge Buchwald will hear argument from both parties.”
→ Counsel for Knight Institute: Jameel Jaffer, the Knight Institute’s executive director, and Katie Fallow, a senior staff attorney at the Institute, will argue before the court, and several plaintiffs in the lawsuit will be in attendance.
→For more information about the lawsuit, including the latest filings, go here.
Headline: “Haling The First Amendment: NYC Taxi Authority’s Ad Ban Struck Down”
Over at Forbes, Glenn Lammiwrites: Taxicab, livery, black car, and limousine companies in the Big Apple may own the vehicles their employees drive, but they know full well who really controls them: the New York City Taxi and Limousine Commission (TLC). Passenger transportation is one of the city’s most heavily regulated businesses, but as a federal district court judge recently reminded TLC, those small business still have constitutional rights.”
“. . . In 2015, media-distribution company Vugo sought to partner with Uber, Lift, and other rideshare company drivers in New York City. Those drivers would download Vugo software onto a tablet device that would be displayed to riders. Vugo would pay each driver 60% of the ad revenue generated from their tablets. Because ridesharing falls into the “other” category of TLC-regulated for-hire vehicles, and TLC made it clear that it would not approve any rideshare drivers’ requests for interior advertising, Vugo could not proceed with its expansion plans. In response, Vugo filed a First Amendment challenge against TLC in U.S. District Court for the Southern District of New York.”
“Southern District Judge Ronnie Abrams held on February 22, 2018 (Vugo v. City of NewYork) that TLC’s ban abridged Vugo’s commercial-speech rights. . . .”
New First Amendment Group — Speech First
It seems that the five freedoms of the First Amendment are getting ever more allies. The latest is a group known as SPEECH FIRST. Here is some information about the group headed by Nicole Neily, president of Speech First.
Nicole Neilly(credit: Cato Institute)
Students’ speech rights on campus are threatened on a regular basis. But the prospect of standing up to a school can be overwhelming – it can be expensive and time-consuming (not to mention awkward, since the student probably still wants a diploma at the end of the day). That’s why most students don’t take action. But what if students who wanted to stand up for free speech on campus were supported by like-minded students from all over the country? And what if those students were part of an organization that had the resources to fight back? Suddenly, it’s not so daunting after all.
That’s why Speech First was created. By coming together, we’ve created a nationwide community to reassure students that they won’t fight these cases alone and that they’ll be supported every step of the way: on campus, in the media, and in court. We’re a membership association of students, parents, faculty, alumni, and concerned citizens from across the country who’ve had enough, and who want to fight back.
We believe that free and open discourse is an essential component of a comprehensive education. We are committed to restoring the freedom of speech on college campuses because we believe that by exposing students to different and challenging ideas, they will emerge stronger, smarter, and more resilient.
Speech First will protect students’ free speech rights on campus. Through advocacy, litigation, and other means, we will put colleges and universities on notice that shutting down unwanted speech will no longer be tolerated.
“After the mass shooting at Marjory Stoneman Douglas High School in Parkland, Florida, students around the country quickly began to protest gun violence. One way gaining much attention: student walkouts. School administrators have responded both positively and negatively to these demonstrations. Now various advocacy groups are calling for a national walkout for 17 minutes at 10 a.m. March 14 in solidarity with the victims of the Florida tragedy. Are these protests protected by the First Amendment?”
These questions are answered by posts consisting of News & Updates, History & Legal Cases, and Analysis and Opinion.
First Amendment challenge to New York City gun licensing restriction fails
David Hudson
This from David Hudson over at the First Amendment Encyclopedia: “Individuals do not have a First Amendment expressive association claim to join a specific gun club or travel with their firearms to gun clubs outside New York City, a federal appeals court has ruled, reasoning that there is no First Amendment right to ‘generalized social association.'” “The New York State Rifle & Pistol Association and three individuals argued that New York City restriction on carrying firearms violated a panoply of constitutional rights, including the Second Amendment right to keep and bear arms, the Dormant Commerce Clause, the right to travel, and the First Amendment.
“The challengers’ First Amendment claim was based on the right to expressive association or the gathering together of individuals for expressive purposes.” “Under New York City law, individuals can obtain a carry permit for firearms or a so-called premises permit, allowing individuals to keep a gun at his or her home or place of business. Individuals also can take their permitted guns, unloaded, to authorized gun ranges in New York City. However, individuals cannot transport such guns to gun ranges outside the city. . . .”
“The Second Circuit rejected the First Amendment challenge in its decision in New York State Rifle & Pistol Association v. New York City. The appeals court characterized joining with others at gun clubs as social association, not expressive association. ‘Gathering with others for a purely social and recreational activity, whether it is dancing or shooting guns is not expressive association,’ the appeals court wrote. ‘Accordingly, the ability to join a specific gun club is not protected association under the Constitution.’ . . .”
Volokh Conspiracy: “University of Miami Demands $7500 for Security for Free Speech Debate Involving Charles Murray”
This from Eugene Volokh: “The Federalist Society at the University of Miami School of Law is trying to put on a debate on free speech between political scientist Charles Murray and Miami law professor Mary Anne Franks, who has written extensively about First Amendment law. Murray, of course, is controversial because he coauthored The Bell Curve: Intelligence and Class Structure in American Life, a book that suggested (among other things) that there may be some biological differences in intelligence between various racial groups. But perhaps because of recent attempts to suppress his speech — including a notorious violent attack at Middlebury College, in which Middlebury professor Allison Stanger was injured — he has also started talking about academic freedom (see, e.g., here). This particular event promised to be a serious, substantive discussion between two serious, substantive scholars.”
“But the University of Miami has been demanding over $7500 in security fees to allow the event to proceed; their quote called for 21 police officers plus 10 security guards, as well as a “team of bag checkers and wanders.” Naturally, that amount is prohibitive for a small student group. . . .”
Upcoming March conference on “Free Expression in an Age of Inequality”
The folks at the Knight First Amendment Institute are keeping busy what with litigation and conferences — speaking of which, they have a major one they are co-hosting later this month. Here are some of the details:
A growing chorus of judges, lawyers, and journalists have called attention to a “Lochnerian” turn in First Amendment doctrine, as the federal courts have increasingly invalidated or narrowed regulations of socio-economic power in the name of free speech or the free exercise of religion. While many legal scholars have offered criticisms of First Amendment Lochnerism — the use of the First Amendment to entrench social and economic hierarchy — there have been few efforts to describe or defend the alternative: a First Amendment that would advance, rather than obstruct or remain indifferent to, the pursuit of social and economic equality. There has likewise been very little commentary connecting First Amendment Lochnerism to broader changes in the institutional landscape of free expression, including the proliferation of private platforms that facilitate and filter public debate.
In response, the Columbia Law Review, the Knight First Amendment Institute, and the Center for Constitutional Governance are convening a day of debate, discussion, and reflection by leading legal scholars. In asking where the First Amendment goes from here, this symposium aims to break down barriers between different scholarly subfields — connecting high-level questions about the First Amendment’s meaning and function with emerging problems in areas such as Internet law, media law, labor law, antidiscrimination law, campaign finance law, and commercial speech. More fundamentally, it aims to move First Amendment theory and practice away from critiques of past judicial rulings and toward the more affirmative project of redesigning the law of free expression for a present and future of mounting economic inequality and authoritarian challenges to democratic norms. The conversation will center around seven original works of scholarship, to appear in the November 2018 issue of the Columbia Law Review, that take up this challenge, whether enthusiastically or critically.
Program
Opening Remarks
Lee C. Bollinger, President & Seth Low Professor of the University, Columbia University
David Pozen, Professor of Law, Columbia Law School
The Digital Infrastructure and Political Economy of Free Expression
Authors
Jack M. Balkin, Knight Professor of Constitutional Law and the First Amendment, Yale Law School
Jedediah Purdy, Robinson O. Everett Professor of Law, Duke University School of Law
Moderator: Jameel Jaffer, Executive Director, Knight First Amendment Institute at Columbia University
Panelists
Maggie McKinley, Assistant Professor of Law, University of Pennsylvania Law School
Tim Wu, Isidor and Seville Sulzbacher Professor of Law, Columbia Law School
Can the First Amendment Be Progressive?
Authors
Leslie Kendrick, Vice Dean & Professor of Law, University of Virginia School of Law
Louis Michael Seidman, Carmack Waterhouse Professor of Constitutional Law, Georgetown University Law Center
Moderator: Jamal Greene, Dwight Professor of Law, Columbia Law School
Panelists
William Araiza, Professor of Law, Brooklyn Law School
Caroline Mala Corbin, Professor of Law, University of Miami School of Law
Equal Protection and the First Amendment
Authors
Genevieve Lakier, Assistant Professor of Law, University of Chicago Law School
Bertrall Ross, Chancellor’s Professor of Law, University of California, Berkeley School of Law
Moderator: Vincent Blasi, Corliss Lamont Professor of Civil Liberties, Columbia Law School
Panelists
Cheryl I. Harris, Rosalinde and Arthur Gilbert Professor in Civil Rights and Civil Liberties, UCLA School of Law
Zephyr Teachout, Associate Professor of Law, Fordham University School of Law
A Progressive Labor Vision of the First Amendment
Author
Catherine Fisk, Barbara Nachtrieb Armstrong Professor of Law, University of California, Berkeley School of Law
Moderator
Olatunde Johnson, Vice Dean & Jerome B. Sherman Professor of Law, Columbia Law School
Panelists
K. Sabeel Rahman, Assistant Professor of Law, Brooklyn Law School
Ganesh Sitaraman, Professor of Law, Vanderbilt Law School
Laura Weinrib, Professor of Law, University of Chicago Law School
Reflections and Next Steps
Moderator
Jeremy Kessler, Associate Professor of Law, Columbia Law School
Panelists
Amy Kapczynski, Professor of Law, Yale Law School
Frank Pasquale, Professor of Law, University of Maryland Francis King Carey School of Law
Amanda Shanor, Staff Attorney, National Legal Department, American Civil Liberties Union
Nelson Tebbe, Professor of Law, Cornell Law School
Closing Remarks
Tomi Williams, Editor-in-Chief, Columbia Law Review
Date: Friday, March 23, 2018, 8:30 a.m. – 5:15 p.m. (reception to follow)
Location: Jerome Greene Hall Room 101 435 West 116th Street, New York, New York 10027
Registration: The symposium is free to all attendees. Registration is required (go here).
Abstract: Using recent examples involving dressmakers refusing to create designs for the First Lady at the Trump inauguration, this paper explains why Masterpiece Cakeshop should be decided in favor the baker who refuses to create a wedding cake for a same-sex wedding ceremony, and why this should be understanding as an equality of rights, rather than prioritizing free speech over nondiscrimination.
Carpenter v. United States (Whether the warrantless seizure and search of historical cell phone records revealing the location and movements of a cellphone user over the course of 127 days are permitted by the Fourth Amendment.)
Free-Speech Related Cases: Cert. Pending
Blagojevich v. United States (When the Government prosecutes a public official for soliciting campaign contributions in alleged violation of the Hobbs Act or other federal anti-corruption laws, must the Government prove the defendant made an “explicit promise or undertaking” in exchange for the contribution, McCormick v. United States (1991) (emphasis added), as five circuits require, or “only . . . that a public official has obtained a payment . . . knowing that [it] was made in return for official acts,” Evans v. United States (1992), as three other circuits hold?)
Civil liberties once were radical. — Laura Weinrib (2016)
The notion that our free speech tradition might be weaponized to advance progressive ends is fanciful. — Louis Michael Seidman
Professor Louis Michael Seidman
Can Free Speech Be Progressive? That’s both the question raised and the title of a forthcoming Columbia Law Review article by Professor Louis Seidman. Without mincing words, Seidman responds: “The answer is no. At least the answer is no if we are talking about free speech in the American context, with all the historical, sociological, and philosophical baggage that comes with the modern, American free speech right. . . .” Of course, there’s more to the story, the nuanced part. That said, here are a few excerpts:
Sword for the Powerful: “With the receding of Warren Court liberalism, free speech law took a sharp right turn. Instead of providing a shield for the powerless, the first amendment became a sword used by people at the apex of the American hierarchy of power. Among its victims: proponents of campaign finance reform, opponents of cigarette addiction, the LBGTQ community, labor unions, animal rights advocates, environmentalists, targets of hate speech, and abortion providers. While striking down laws that protected all of these groups, the Court upheld a statute that cut off all funding to colleges and universities that refused to allow the military to recruit on campus and a statute that criminalized purely political speech that constituted neither incitement nor a clear and present danger when the speech “materially support[ed]” a group that the State Department labelled as a “foreign terrorist organization.”
Mere Instrumental Utility for Progressives: The free speech victories of the past “do not make free speech progressive. The working class might be slightly better off because of the few crumbs cast their way by the Trump tax law. That does not make the law redistributive. Similarly, the fact that free speech protects the left from the most extreme threats to it does not make the speech right progressive. The question that I address here is not whether the speech right has instrumental utility in isolated cases or whether it is necessary to minimize extreme downside risks. Instead, I address the claim that the amendment has significant upside potential. Can progressives weaponized free speech by tinkering with constitutional doctrine? Can they convert the first amendment from a sporadically effective shield against annihilation to a powerful sword that would actually promote progressive goals? To answer that question, we need to think hard not just about isolated cases, but about the theory behind the right and the right’s basic structure.”
Not Much Historical Help: “At its core, free speech law entrenches a social view at war with key progressive objectives. For that reason, it is not surprising that throughout American history, the speech right has, at best, provided uncertain protection for the left. The modern, anti-progressive first amendment amounts to the delayed presentation of traits built into the genetic material of the speech right.”
Four Reasons Why Free Speech Cannot be Progressive
The Link Between Free Speech and Property Entitlements: “There is an intrinsic relationship between the right to speak and the ownership of places and things. Speech must occur somewhere and, under modern conditions, must use some things for purposes of amplification. In any capitalist economy, most of these places and things are privately owned, and in our capitalist economy, they are distributed in dramatically inegalitarian fashion.”
“Granting speech opportunities to some often denies speech opportunities to others. For that reason, the speech right harms speech, as well as nonspeech, interests.”
Free Speech & Government Neutrality: “American speech law is dominated by a concern about equality and neutrality. Free speech law’s core commitment is to the proposition that the government may never suppress speech simply because of disagreement with the message that it expresses.”
Free Speech & Free Thought: “The assertion of a constitutional right to freedom of speech is dictatorial. . . . [C]onstitutionalizing the right to freedom of speech leads to an anti- liberal mindset. An assertion that the Constitution requires a certain state of affairs is a way of avoiding the necessity for producing actual reasons for why that state of affairs is desirable and just. If the Constitution requires something, then that is the end of the argument, at least in American constitutional culture. Short of a constitutional amendment, a constitutional requirement that a thing must be done just means that it must be done. Once the requirement is established, there is nothing left to talk about.”
“[W]hile it is true that a right to universal free speech can be invoked by the powerful as well as the weak, by business as well as labor, the right is nonetheless more valuable for the weak. By definition, the powerful are able to achieve their interests through the political process. As a result, they are less likely to need constitutional protections. For the weak, however, constitutional protections may be all they have. While “civil liberties” in their liberal form are universal, they are designed to protect those whose interests are not served by the political process. And that gives them radical potential, even if they are available to all. . . .”
“The classical liberal conceptions of free speech and free press may not be enough to produce a fully informed electorate or to redress the social and economic ills that skew public debate. But as a constitutional matter, they remain the single best defense against an overweening state. More than ever, those are the rights and liberties that will now need our support.”
Headline: “ACLU files First Amendment lawsuit over mural featuring controversial Trump quote”
According to WGNO (ABC) News: “The ACLU of Louisiana is sticking up for a New Orleans resident city officials have ordered to remove a controversial mural. The mural depicts a somewhat censored version of an infamous quote of President Trump discussing his interactions with women during a 2005 Access Hollywood segment. In the mural, vulgar words from the original quote are substituted with cartoon-style pictures including a topless woman and a pink hat popular with participants of last year’s Women’s March in Washington, DC. Property owner Neal Morris faces a steep fine or jail time after the New Orleans Department of Safety and Permits accused him of a zoning violation because of the mural.”
“Morris covered the mural with a sheet featuring the word “Censored” in multiple colors after the city’s decision. City code requires ‘advance review and approval by the board of murals review prior to issuance of a permit’ for all proposed murals, according to the ACLU.”
“But that advanced permitting process puts city bureaucrats in control of the freedom of expression afforded to private citizens by the First Amendment, according to ACLU of Louisiana interim executive director Jane Johnson. . . .”
→ACLU Memorandum in Support of Preliminary Injunction in Morris v. City of New Orleans
Case Development rePresident’s Blocking of Critics on Twitter
NAOMI REICE BUCHWALD UNITED STATES DISTRICT JUDGE
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK, March 13, 2018
At oral argument, the government stated that the blocking of Twitter users on the @POTUS and @Whitellouse accounts would “likely would run afoul of the First Amendment but not because of public forum doctrine” and that “it is probably true that government cannot block individuals purely on the basis of viewpoint from a government account like the @POTUS account,”Hr’gTr.26:19-20,29:16-18. Weunderstoodthetotalityofthegovernment’sposition to be that the First Amendment prohibits the blocking of users from those accounts. We neglected, however, to address the impact of this position on the question currently before the Court-whether such blocking may occur on the @RealDonaldTrump account.
Accordingly, we request that the government submit, by March 28, a letter brief of no more than five pages clarifying its position. If the government continues to take the position that users may not be blocked from the @POTUS and @WhiteHouse accounts, it should explain all of the ways in which the First Amendment analysis differs for those two accounts on the one hand and the @RealDonaldTrump account on the other. If the government no longer takes the position that such blocking is unconstitutional, it should explain why such blocking is in fact permissible. The plaintiffs may submit a responsive letter within seven days of the government’s letter.
Very truly yours,
Naomi Reice Buchwald, United States District Judge
11th Circuit Rules on Mask-at-a-Protest case
Professor Steven D. Schwinn
This from Steven D. Schwinn over at Constitutional Law Prof Blog: “A divided panel of the Eleventh Circuit ruled today that officers enjoyed qualified immunity against First and Fourth Amendment claims after arresting an Atlanta Ferguson protestor for wearing a ‘V for Vendetta’ mask. The ruling ends the protestor’s civil-rights action against the officers.”
“The case, Gates v. Khokhar, arose when officers arrested Austin Gates for wearing the mask during the Atlanta protest, and failing to take it off when so ordered by police. Officers charged Gates with a violation of Georgia’s Anti-Mask statute, which, with certain exceptions not relevant here, makes it a misdemeanor for a person to ‘wear[] a mask, hood, or device by which any portion of the face is so hidden, concealed, or covered as to conceal the identity of the wearer” while he is ‘upon any public way or public property.’ Gates sued, arguing that his arrest violated the First and Fourth Amendments.”
“The Eleventh Circuit ruled that the officers enjoyed qualified immunity and dismissed Gates’s federal constitutional claims. The court said that the Georgia Supreme Court had narrowed the Anti-Mask statute to cases where (1) the mask is worn with the intent to conceal the identity of the wearer and (2) the wearer of the mask ‘knows or reasonably should know that [his] conduct provokes a reasonable apprehension of intimidation, threats, or violence.'”
Bar on autopsy reporting held unconstitutional by Nevada High Court
This from the Reporters Committee for Freedom of the Press: “The Nevada Supreme Court ruled that an order barring the Las Vegas Review-Journal and Associated Press from disseminating or reporting on an anonymized autopsy record for a victim from the Oct. 1 Las Vegas mass shooting is an unconstitutional prior restraint.”
“Caitlin Vogus, staff attorney at the Reporters Committee for Freedom of the Press, made the following statement:
“‘Today the Nevada Supreme Court recognized that prohibiting the Las Vegas Review-Journal and Associated Press from reporting on a public record was an unconstitutional prior restraint. Barring publication is one of the most serious infringements on a free press, and the court’s ruling upholds the press and public’s First Amendment right to access and report on public records. The information in these anonymous autopsy records has already helped shed light on and helped the public better understand what transpired during this tragedy.'”
Gabe Rottman joins Reporters Committee to lead Technology & Press Freedom Project
The Reporters Committee for Freedom of the Press welcomes Gabe Rottman as the first director of the new Technology and Press Freedom Project. In this role, Gabe will oversee the Reporters Committee’s work at the intersection of press freedom and technology issues, including on key topics such as privacy, electronic surveillance, and internet policy.
Gabe Rottman
“Changes in technology are constantly influencing how journalists report and audiences consume the news, and Gabe will lead our efforts to help ensure these advances uphold our civil liberties and support the free flow of information to the public,” said Bruce Brown, executive director of the Reporters Committee. “We are thrilled to have Gabe join our team, and his deep experience will further strengthen our work to advance First Amendment freedoms and protect the newsgathering rights of journalists in the U.S.”
Rottman joins the Reporters Committee from PEN America, where he was the organization’s Washington director, overseeing advocacy efforts in Congress and the executive branch. Prior to PEN America, he was deputy director for the Freedom, Security, and Technology project at the Center for Democracy and Technology, and legislative counsel and policy advisor at the American Civil Liberties Union on open government and First Amendment issues. Rottman also brings experience as a litigation associate at Simpson Thacher & Bartlett LLP, where he focused on antitrust and national security matters.
“I’m excited to be joining the Reporters Committee as it expands its work on privacy, surveillance, and other technology issues that impact journalists’ ability to gather and report the news every day,” Rottman said. “The Technology and Press Freedom Project will bring together our legal, policy, and advocacy work in a concentrated effort to help journalists navigate the technology landscape and protect their rights as they shine a light on important issues and keep our communities informed.”
Abstract: Until the 1960s, in order to win their cases, libel plaintiffs in the United States had to prove that the statement at issue was published, was about them, harmed their reputation, and was untrue. Thus Montgomery, Alabama Commissioner Lester Bruce Sullivan was able to easily win his libel claims against The New York Times over erroneous statements in a civil rights advertisement. But when his case was appealed to the Supreme Court, the Court invoked principles of accountability of public officials to hold that the First and Fourteenth Amendments required that public officials like Sullivan also show that the defendant acted with “actual malice” – actual knowledge that a statement was untrue or with “reckless disregard” for the accuracy of the statement.
Prof. Eric Robinson
Over the next several years, the Supreme Court decided a number of cases in which it refined and clarified the new libel standards that it had imposed in Sullivan. St. Amant v. Thompson was an important part of this series in which the Court explored the contours of the Sullivan rule and established the definition of “reckless disregard” in the “actual malice” test. Yet while Sullivan and other cases in the succession of decisions that followed it have been subject of significant scholarly and legal literature, the St. Amant case, once called “the most important of the recent Supreme Court libel decisions,” has been comparatively ignored.
Eric Robinson’s analysis of the case and its ramifications fills this gap. Robinson’s study includes a deft examination of the background of the legal proceedings as well as the social and political situation in which it occurred. His analysis of how the Supreme Court dealt with the case includes its internal deliberations and discussions, shedding new light on the favorable ruling for St. Amant which forever changed the U.S. libel law.
Abstract: A lack of transparency for online political advertising has long been a problem in American political campaigns. Disinformation attacks that American voters have experienced since the 2016 campaign have made the need for regulatory action more pressing.
Disinformation on social media sometimes takes the form of “fake news”. Fake news is not news, it is native political advertising. Campaign advertising on social media – regardless of veracity – allows campaigns and outside groups to activate a narrow slice of the electorate with micro-targeted appeals. An ad can activate one’s bias or spread disinformation and never be seen again. The group running the ad escapes accountability and does not expose its audience to counter speech. Accountability and possibility of counterspeech are both features of political advertising in other venues, like television, cable, and radio.
co-author Ann Ravel
Political ads on the Internet have escaped transparency requirements due to loopholes baked into the regulatory framework long before the age of social media. The Supreme Court has repeatedly upheld transparency requirements related to political ads, and we expect that it would do so for online political ads as well. . . .
We propose several interventions aimed at transparency. Most importantly, campaign finance regulators should require platforms to store and make available ads run on their platforms, as well as the audience at whom the ad was targeted. Audience availability can be structured to avoid privacy concerns, and it meets an important speech value in the “marketplace of ideas” theory of the FirstAmendment, that of enabling counter speech. Our proposal for online advertising storage improves upon the existing disclosure requirements for advertising purchases on broadcast, cable, and satellite. It would capture any political advertising, including disinformation, that is promoted via paid distribution on social media, as well as all other online political advertising. Second, Congress should stop preventing regulatory agencies from closing existing loopholes around disclosure and disclaimers. Finally, we propose that government require platforms to allow social media users to opt-in to viewing narrowly-targeted ads or disputed content. Other regulatory efforts aimed at reducing the number of disinformation ads circulating are better left to the platforms for constitutional reasons.
Bret Weinstein, professor in exile, Speaking Freely, FIRE, March 8, 2018 (“Former Evergreen State College Professor Bret Weinstein describes himself as a “professor in exile.” The evolutionary biologist left Evergreen last September in the fallout from the controversy surrounding the school’s planned Day of Absence programming.”)
“Episode 4: Expert Opinion – Paul Cartledge, Clear & Present Danger, FIRE, March 8, 2018 (Jacob Mchangama talks to Emeritus Professor of Greek Culture at Cambridge University Paul Cartledge. With his intimate knowledge of ancient Greece, we dive deeper into the concepts of free speech and democracy in Athens that were discussed in episode one.)
Episode 3: The Age of Persecution, Clear & Present Danger, March 1, 2018 (“Rome was the most powerful empire in antiquity. But were the Romans free to speak truth to power? Did history’s first successful Women’s March take place in Rome? And who came out on top when the words of Cicero clashed with the ambition of Caesar and armies of Octavian? Why did historians and astrologers become endangered species when the Republic became an empire? Find out in episode 2 of ‘Clear and Present Danger: A History of Free Speech.'”
Carpenter v. United States (Whether the warrantless seizure and search of historical cell phone records revealing the location and movements of a cellphone user over the course of 127 days are permitted by the Fourth Amendment.)
Free-Speech Related Cases: Cert. Pending
Blagojevich v. United States (When the Government prosecutes a public official for soliciting campaign contributions in alleged violation of the Hobbs Act or other federal anti-corruption laws, must the Government prove the defendant made an “explicit promise or undertaking” in exchange for the contribution, McCormick v. United States(1991) (emphasis added), as five circuits require, or “only . . . that a public official has obtained a payment . . . knowing that [it] was made in return for official acts,” Evans v. United States (1992), as three other circuits hold?)
Declining support for unfettered debate among politicians, academics, and the public doesn’t bode well for the future of free speech. — J.D. Tuccille, March 19, 2018
There’s dissent in the air — from the Left, the Right, and from Libertarian quarters, too. Everybody is getting ever more worked up about free speech in America.
J.D. Tuccille
Donald Trump wants to revive old defamation laws; some on the Left want to amend the First Amendment; some on the Right want the government to regulate violent movies and video games; many college administrators appear determined to abridge the First Amendment; college students gather en masse to silence speech that offends them; First Amendment scholars ask What’s Wrong with the First Amendment?;and Libertarians, well, they can never have enough free-speech freedom.
Make no mistake: the future of the First Amendment hangs in the balance as never before. This is no “the sky is falling” claim. Rather, it is an observation on our times. No, not like the late 18th century, or WWI, or the McCarthy Era. Not at all. But we are in a state of transition. Take heed: the goal lines are shifting.
“We have an environment in which the president of the United States is dismissive of the free speech rights of his opponents, prominent constitutional scholars sniff at free speech unless it’s used by the “right” people for their favored goals, and the country’s leading civil liberties organization is suffering an internal revolt by staffers who oppose “rigid” support for free speech protections.”
“[I]f you’re an academic with expertise in constitutional law, and you have months to watch a populist politician who commands the power of the presidency fulminate about punishing those who criticize him, what do you do? If you’re Georgetown Law’s Louis Michael Seidman, you suggest that the president might be on to something.”
“In 2016, [Professor Seidman] wrote for the Nation, ‘Would the election of Donald Trump threaten the sanctity of the United States Constitution? We should be so lucky.’ In fact, Seidman has long been an advocate for dumping the Constitution and its protections in their entirety. He just thinks that Trump is the wrong vehicle.”
“And Seidman isn’t alone in arguing from academia that free speech is overrated. His paper favorably quotes Laura Weinrib of the University of Chicago Law School, author of The Taming of Free Speech: America’s Civil Liberties Compromise. Weinrib complained in a Los Angeles Timesop-ed last summer that “free speech has served to secure the political influence of wealthy donors,” while “labor’s strength has plummeted, and the Supreme Court is poised to recognize a 1st Amendment right of public sector employees to refuse to contribute to union expenses.”
“Last fall, about 200 of the [ACLU’s] staff members signed a letter objecting to the groups’ ‘rigid stance’ on the First Amendment. The letter was characterized by former ACLU board member Michael Meyers as ‘a repudiation of free-speech principles.'”
“[I]ntolerance has pretty clearly become a dominant theme at colleges, where the likes of Seidman and Weinrib teach that free speech is overrated and important primarily as a tool to be reserved for the right ideas.”
There is more, much more, but you’ll need to read the full article to discover what you missed.
Court Reporters’ assessments ofarguments inCalifornia abortion-speech law case
Issue: Whether the disclosures required by the California Reproductive FACT Act violate the protections set forth in the free speech clause of the First Amendment, applicable to the states through the F Fourteenth Amendment.
Facts: This from Amy Howe over at SCOTUSblog: “The California legislature passed the law because it was worried that crisis pregnancy centers – nonprofit organizations, often affiliated with Christian groups, that are opposed to abortion – were posing as full-service reproductive health clinics and providing pregnant women with inaccurate or misleading information about their options. The act requires nonprofits that are licensed to provide medical services (such as pregnancy tests and ultrasound examinations) to post notices to inform their patients that free or low-cost abortions are available, while centers without such licenses – which try to support pregnant women by supplying them with diapers and formula, for example – must include disclaimers in their advertisements to make clear, in up to 13 languages, that their services do not include medical help.”
Lawyers
Michael P. Farris argued on behalf of the Petitioners.
Jeffrey B. Wall, Deputy Solicitor General, Department of Justice, argued on behalf of the United States, as amicus curiae, in support of neither party, and
Joshua A. Klein, Deputy Solicitor General, California, argued on behalf of the Respondents
Commentators — Consensus: Justices skeptical of constitutionality of California law
Adam Liptak (NYT): “A California law that requires ‘crisis pregnancy centers’ to provide information about abortion met a skeptical reception at Supreme Court arguments on Tuesday. . . . Some justices expressed frustration with the thin court record in the case, which arrived at the Supreme Court at an early stage in the proceedings. That left open the possibility that the justices could return the case to the lower courts for a full trial.”
David Savage (L.A. Times): “The Supreme Court sounded ready Tuesday to strike down a California disclosure law that requires pregnancy centers — including those that are faith-based — to notify women that the state offers subsidies for abortion. . . . [M]ost of the justices took sharp issue with all or parts of the California law. They said it was unfairly targeted at the faith-based centers. Doctors and for-profit clinics were exempted from the law. . . . Tuesday’s case marked the third time in recent months that the justices weighed a conservative group’s claim that a liberal state law amounts to unconstitutional ‘compelled speech.'”
Nina Totenberg (NPR): “Supreme Court justices on both sides of the ideological spectrum expressed skepticism about California’s ‘truth-in-advertising’ law requiring anti-abortion clinics to more fully disclose what they are.”
Robert Barnes (Washington Post): “Supreme Court justices on Tuesday indicated that a California law requiring antiabortion pregnancy centers in California to notify women that the state provides free or low-cost health care, contraception services and abortion, could violate free speech rights. . . . [Justice Kennedy’s questions] were almost uniformly hostile to the law, and he was even short with other justices who seemed to defend it.”
EXCERPTS from aruments in California abortion-speech law case
JUSTICE KAGAN: “Would a requirement that [a non-medical] facility post a notice saying there actually are a lot of options and here’s how you can access them, would that be unconstitutional?” . . . .
JUSTICE ALITO: “What if there [was] a state law that required every doctor or facility that provides medical treatment for pregnant women to post a notice setting out the full range of options available to those women and where they might obtain services at no cost, if those — if those are available?” . . .
JUSTICE BREYER: “In law, as you well know, what is sauce for the goose is sauce for the gander. And so I think what’s bothering [with] these questions people, as it bothers me . . . — there are pro-choice states and there are pro-life states. All right? So, if a pro-life state can tell a doctor you have to tell people about adoption, why can’t a pro-choice state tell a doctor, a facility, whatever it is, you have to tell people about abortion?” . . . .
JUSTICE GORSUCH: “We don’t have a lot of evidence with respect to the nature of the burden that would be imposed by the 48-font requirement on all ads. There’s some evidence in the amicus briefs that it might be like a $9,000 a month tax for advertisements. But what do we do about the lack of a record here and whether we should wait for an as-applied challenge . . . .”
JUSTICE GINSBURG: “We don’t know what kind of adjustments might have been made because this case went off without any kind of an evidentiary hearing, as was pointed out.”
JUSTICE SOTOMAYOR: “The text of the page titled ‘Abortion’ says Fallbrook will educate clients about different abortion methods available, and describe in medical terms different abortion procedures. The website also says clients will be evaluated by nurses and that they follow all HIPAA regulations, which if they’re not a medical provider, they don’t have to follow HIPAA. wrong?” . . . .
JUSTICE SOTOMAYOR: “So if you’re giving people advice about pregnancy when you are not a licensed facility, please explain to me what is both misleading, incorrect, or suggestive in any way that a person has to do something like go to this doc — to a doctor, how is it doing anything other than telling people that, despite how the picture looks on the website, this is not a medical facility?”
JUSTICE KENNEDY: “What would happen if an unlicensed entity, unlicensed center, just had a billboard that said ‘Choose Life.’ Would they have to make the disclosure?” . . . .
CHIEF JUSTICE ROBERTS: “can [these facilities] be required to list services that they don’t provide but that may be provided elsewhere?” . . . .
JUSTICE BREYER: “So, in your view, family planning clinics do not have to tell any woman about abortion — adoption?”
JUSTICE BREYER: “There are millions of people in this country who have views on this subject that are absolutely opposed, one to the other. So that, to me, suggests the law should keep it as simple as possible. And that’s why sauce for the goose, sauce for the gander. I mean, if the law is permissible which says, Doctor, you must tell the woman about adoption, then why shouldn’t the law say, Family Planning Center, you must tell the woman about abortion? Sounds even-handed, sounds as if everybody in the same business is under the same rules.” . . . .
JUSTICE ALITO: “[T]o take a couple of examples: Journalists are professionals. So would they be subject to this standard? How about economists? How about climate scientists? How about a fortune teller? The Fourth Circuit said that a fortune teller is a — is a professional. How about somebody who writes an advice column for parents? I mean, wouldn’t we be getting into very dangerous territory if we do this?” . . . .
JUSTICE ALITO: “If you have a law that’s neutral on its face, but then it has a lot of crazy exemptions, and when you apply all the exemptions, what you’re left with is a very strange pattern and, gee, it turns out that just about the only clinics that are covered by this are pro-life clinics. Do you think it’s possible to infer intentional discrimination in that situation?” . . . .
JUSTICE ALITO: “Why does this apply only to clinics whose primary function is providing service to pregnant women?” . . . .
JUSTICE ALITO: [Why does the law] apply almost only to for — to non-profits and not for-profits? If the purpose is to get this information out to poor women, don’t you think there are examples of poor women who stumble into a for-profit facility? Wouldn’t it be beneficial for them to know that they could get treatment at no cost through the state?” . . .
JUSTICE KAGAN: “[W]e’re really concerned that there are low-income women, don’t have a lot of access to information, don’t realize what all their options are, want to make sure in general and across the board that they get the best information that’s available to them. Another way to think about what the problem is and how a statute like this comes about is more targeted. It’s to say there are these crisis pregnancy centers all over California and we know that women just go into them and they don’t realize what they are, and they’re being subject to being misled and we think that this is a terrible problem.” . . . .
JUSTICE GORSUCH: “Well, but if you’re trying to educate a class of — of persons about their rights, it’s — it’s pretty unusual to force a private speaker to do that for you under the First Amendment.”
JUSTICE SOTOMAYOR: “Mr. Klein, can we go back to the question Justice Kennedy asked the other side, which was for you to affirm or disaffirm that if one of these facilities wrote an ad that just said pro-life and put their name, it appears as if the law would require them to have the statement ‘This is not a medical facility” in 48-point font?'”
JUSTICE KAGAN: “[W]e have these general disclosure requirements, but we don’t really want to apply them generally, we just want to apply them to some speakers whose speech we don’t much like . . . .”
Amending Section 230 of the Communications Decency Act
“In the first major change to Section 230 in years, Congress is voting this week to make Internet companies take a little more responsibility than they have for content on their sites. . . The Senate is expected to pass the bill as early as Wednesday, sending it to President Trump for his signature. The White House has supported the legislation.””And for the first time, after years of staunch defiance, the Internet Association came out in support of legislation to change Section 230 — shocking smaller Internet companies and digital-rights groups by breaking ranks.”
Section 230 lives inside the Communications Decency Act of 1996, and it gives websites broad legal immunity: With some exceptions, online platforms can’t be sued for something posted by a user — and that remains true even if they act a little like publishers, by moderating posts or setting specific standards.”‘Section 230 is as important as the First Amendment to protecting free speech online, certainly here in the U.S.,’ says Emma Llanso, a free-expression advocate at the Center for Democracy and Technology.”
“Section 230 is also tied to some of the worst stuff on the Internet, protecting sites when they host revenge porn, extremely gruesome videos or violent death threats. The broad leeway given to Internet companies represents ‘power without responsibility,’ Georgetown University law professor Rebecca Tushnet wrote in an oft-cited paper.
“Danielle Citron, a University of Maryland law professor who authored the book Hate Crimes in Cyberspace, argues that responsibility is exactly what’s missing from the law.’Yes, let’s think about the consequences for speech,” she says, pointing to the flip side of the free-wheeling Internet. “There are countless individuals who are chased offline as a result of cyber mobs and harassment.'”
C.J. Roberts is Reshaping The First Amendment
Amelia Thompson-DeVeaux
Amelia Thomson-DeVeaux, writing for Five Thirty-Eight, has a new article on Chief Justice Roberts and the First Amendment. Here are some excerpts from her article:
“As of the end of the 2016 term, Roberts had written 34 percent of the free speech decisions the court has handed down since he joined its ranks, and 14 percent of his majority opinions were devoted to the topic. Even when he’s not writing for the majority, Roberts is rarely on the losing side: Out of the 38 free speech cases we counted, he voted with the minority only once.”
Free speech-related* Supreme Court cases,
by author of the majority opinion, 2005-16
JUSTICE
NO. OF SPEECH CASES
SHARE
Roberts
13
34.2%
Alito
5
13.2
Breyer
5
13.2
Scalia
4
10.5
Kennedy
4
10.5
Sotomayor
2
5.3
Thomas
2
5.3
Souter
1
2.6
Stevens
1
2.6
Ginsburg
1
2.6
O’Connor
0
0.0
Kagan
0
0.0
Gorsuch
0
0.0
* Decisions that list “First Amendment (speech, press and assembly)” as a legal provision considered in the case
→ SOURCE: The Supreme Court Database
→ There is more and I urge readers to review the entire article.
New article examines conflict between academic freedom & open-records laws
Professor Claudia Polsky
This from Zach Greenberg writing for FIRE: “A recent paper provides an in-depth look into the ongoing friction between state open records laws and the academic freedom of university researchers.”
“The article, written by University of California, Berkeley, School of Law professor Claudia Polsky, addresses how these laws have been used to conduct politically-motivated fishing expeditions into the private academic records of controversial professors in order to deter them from research and debate.”
“Polsky argues that “professors should never have been subject to public records laws in the first instance, both because they are not engaged in public governance, and because open records laws are fundamentally incompatible with academic freedom.” Her meticulously researched article documents numerous instances of professors targeted by open records laws — a distortion detrimental to the “democracy-promoting intent” of these statutes. Although these laws were designed to shed light on government actors with decision-making authority, Polsky explains how they are currently being twisted to stifle legitimate academic inquiries into controversial issues.”
W. Va. court strikes down Internet restrictions on parolees
David Hudson
This from David L. Hudson, Jr. at TheEncyclopedia of the First Amendment: “A restriction that prohibited a parolee from possessing or having contacts with a computer or other device with internet access violates the First Amendment, the West Virginia Supreme Court has ruled in Mutter v. Ross.”
“Bobby Ross sexually assaulted a female in 1987. He received a lengthy prison sentence and the state released him on parole in May 2014. A special condition of his parole prohibited him from “possess[ing] or hav[ing] contact with any computer, electronic device, communication device or any device which is enabled with Internet access.” Thus, the condition prohibited Mr. Ross from owning a smartphone, checking the Internet for job ads, or other innocent activity that involved the use of a computer.”
“A parole officer noticed that Ross’ girlfriend owned a computer. Because Ross lived with his girlfriend, the parole officer believed that Ross violated his parole and started proceedings that led him to be placed back into prison. For his part, Ross and his girlfriend testified that Ross did not use the computer.”
Ross challenged his parole revocation on several grounds, including a First Amendment argument. Ross contended that the special parole restriction violated the First Amendment based on the U.S. Supreme Court’s decision in Packingham v. North Carolina (2017). . . .”
“‘The special condition of parole is clearly unconstitutional in light of the Supreme Court’s ruling in Packingham,’ the state high court wrote.”
Job Announcement: First Amendment Watch seeks Researcher/Writer
Researcher/Writer
NYU Arthur L. Carter Journalism Institute
First Amendment Watch is currently seeking a full-time Researcher/Writer in New York to research and build site content and promote our work on social media.First Amendment Watch is an online news and educational resource for journalists, educators and students. Our goal is to increase civic engagement by providing the tools for citizens of all ages to better understand their rights. The site documents contemporary threats to the freedoms of speech, press, assembly, and petition—rights that are specified in the First Amendment. We provide links to wide-ranging coverage as well as analysis and commentary from varying points of view. We also offer original content explaining the legal and historical background behind each controversy, including discussion of relevant court decisions. In addition, we provide book excerpts of leading First Amendment writers and excerpt important First Amendment historical documents and case decisions. We round out our resources with a glossary of terms and links to resources for further study.
Competitive salary and full NYU benefits package.
QUALIFICATIONS
Minimum requirements:
Bachelor’s degree in Journalism or Communications preferred, Masters degree is a plus.
Minimum one-year full-time professional news reporting experience preferred.
Knowledge of local and national current events, newsmakers, and issues particularly related to First Amendment.
Able to efficiently research and contribute content to all platforms, including but not limited to Facebook, Twitter and Instagram.
A working knowledge of basic content management systems (CMS) such as WordPress and/or Drupal is essential. A fair knowledge of InDesign, Illustrator and Photoshop is preferable.
Knowledge of MailChimp and newsletter campaigns.
Experience using Google Analytics and similar tools.
Ability to shoot video.
APPLICATION INSTRUCTIONS
Review of applications will begin immediately and will continue until the position is filled. We are requesting a cover letter, resume and two writing samples (links acceptable).
Job Announcement: Liberty & Law Center Seeks Free Speech Fellow
In Fall of 2018, the Liberty and Law Center will launch a Free Speech Clinic, which will provide Scalia Law students with hands-on experience representing clients against infringements upon their freedom of speech. The Clinic will also be a resource for organizations, students, journalists, and citizens defending and advancing freedom of expression.
→ Over at The Volokh Conspiracy, David E. Bernsteinposted the job announcement set out below. Professor Bernstein is the Executive Director of the Liberty and Law Center and University Professor at the Antonin Scalia Law School.
Liberty and Law Center / Free Speech Clinic Fellow
Salary Range: Competitive with similar fellowships.
The Liberty and Law Center at the Antonin Scalia Law School is looking for a Free Speech Clinic Fellow to run a new Free Speech Clinic for law students, which will begin in Fall of 2018. The Free Speech Clinic Fellow will collaborate with the Clinic Director to manage, instruct, and support the activities of the Free Speech Clinic. It is anticipated that the Clinic will focus on two core First Amendment objectives: (1) litigating and supporting cases and other legal proceedings that further the cause of free speech; and (2) training a group of future lawyers who want to advance their knowledge of the status of freedom of speech in the United States, and seek practical training in protecting freedom of speech.
The Liberty and Law Center is a new academic center within Scalia Law School. Its mission is to provide a forum to learn about the role of law in protecting and promoting liberty, challenge government encroachment upon liberty, and lead the discussion of the law’s role in protecting and promoting liberty.
Fellowship Description:
At the direction of the Clinic Director and the Center’s leadership, the Fellow’s responsibilities include but are not limited to:
Serve as the day-to-day manager of the Clinic.
Provide supervision and instruction to students in the Clinic, including feedback, mentoring, and training.
Manage ongoing cases, ensuring that the work is done in a timely and professional manner.
Assist with the organization and teaching of the Clinic, focusing on substantive knowledge of First Amendment doctrine and the litigation process, as well as effective legal writing, advocacy, and client relations skills.
Develop the focus of cases the Clinic will work on, including developing and maintaining relationships with public interest law firms with which the Clinic expects to collaborate.
Assist in managing the marketing and promotion of the Clinic.
This is a full-time position for a period of two-years and is benefits eligible. The position may be renewable.
Requirements: The Fellow must be a U.S. citizen (or otherwise eligible to work in the U.S.) and a law school graduate, with practical experience and background in constitutional law.
Desired qualifications and skills:
A strong interest in freedom of speech and the First Amendment;
2 or more years of relevant experience;
Demonstrated ability to collaborate with others and execute projects;
Strong analytical and research skills;
Strong spoken and written communication skills; and
Highly self-motivated and detail-oriented with an ability to advance projects in a self-directed way.
Required qualifications:
A juris doctor;
License to practice law in Virginia, or ability to obtain a Virginia bar license within a short timeframe; and
Either (1) At least one year of litigation experience; or (2) a demonstrated interest in constitutional law and public interest litigation.
Required application materials:
Cover letter;
Resume, no longer than two pages;
Three professional references; and
Writing sample, no longer than five pages (can be an excerpt from a longer work).
Upcoming Symposium: A First Amendment for All? Free Expression in an Age of Inequality
Location: Jerome Greene Hall Room 101 435 West 116th Street, New York, New York
Description: A growing chorus of judges, lawyers, and journalists have called attention to a “Lochnerian” turn in First Amendment doctrine, as the federal courts have increasingly invalidated or narrowed regulations of socio-economic power in the name of free speech or the free exercise of religion. While many legal scholars have offered criticisms of First Amendment Lochnerism—the use of the First Amendment to entrench social and economic hierarchy—there have been few efforts to describe or defend the alternative: a First Amendment that would advance, rather than obstruct or remain indifferent to, the pursuit of social and economic equality. There has likewise been very little commentary connecting First Amendment Lochnerism to broader changes in the institutional landscape of free expression, including the proliferation of private platforms that facilitate and filter public debate.
In response, the Columbia Law Review is convening a day of debate, discussion, and reflection by leading legal scholars. In asking where the First Amendment goes from here, this symposium aims to break down barriers between different scholarly subfields—connecting high-level questions about the First Amendment’s meaning and function with emerging problems in areas such as Internet law, media law, labor law, antidiscrimination law, campaign finance law, and commercial speech. More fundamentally, it aims to move First Amendment theory and practice away from critiques of past judicial rulings and toward the more affirmative project of redesigning the law of free expression for a present and future of mounting economic inequality and authoritarian challenges to democratic norms. The conversation will center around seven original works of scholarship, to appear in the November 2018 issue of the Columbia Law Review, that take up this challenge, whether enthusiastically or critically.
Location: Hayek Auditorium, Cato Institute, Washington, D.C.
Featuring the author Keith E. Whittington, William Nelson Cromwell Professor of Politics, Princeton University; with comments by Ilya Somin, Professor of Law, George Mason University; moderated by John Samples, Vice President, Cato Institute.
Free speech is under attack at colleges and universities today, with critics on and off campus challenging the value of open inquiry and freewheeling intellectual debate. Too often speakers are shouted down, professors are threatened, and classes are disrupted. Constitutional scholar Keith E. Whittington argues that universities must protect and encourage free speech because vigorous free speech is the lifeblood of the university. Without free speech, a university cannot fulfill its most basic, fundamental, and essential purposes, including to foster freedom of thought, ideological diversity, and tolerance.
Examining such hot-button issues as trigger warnings, safe spaces, hate speech, disruptive protests, speaker disinvitations, the use of social media by faculty, and academic politics, Speak Freely describes the dangers of empowering campus censors to limit speech and enforce orthodoxy. It explains why free speech and civil discourse are at the heart of the university’s mission of creating and nurturing an open and diverse community dedicated to learning. It shows why universities must make space for voices from both the left and right. And it points out how a better understanding of why the university lives or dies by free speech can help guide everyone—including students, faculty, administrators, and alumni—faced with difficult challenges such as unpopular, hateful, or dangerous speech.
Timely and vitally important, Speak Freely demonstrates why universities can succeed only by fostering more free speech, more free thought—and a greater tolerance for both.
→ If you can’t make it to the event, you can watch it live online at www.cato.org/live and join the conversation on Twitter using #Cato1A. Follow @CatoEvents on Twitter to get future event updates, live streams, and videos from the Cato Institute.
Now Posted: Video of 1-A Salon on Masterpiece Cakeshop case
Sarah Warbelow, Ilya Shapiro, Steve Wermiel, Robert Corn-Revere & John Paul Schnapper-Casteras
→ The next First Amendment Salon is on April 27th and will take place at the Floyd Abrams Institute for Freedom of Expression at Yale Law School (topic to be determined).
Two New Podcasts: On Ancients & Moderns
Episode 4: Expert Opinion – Paul Cartledge, Clear & Present Danger: A History of Free Speech (FIRE) (In our first expert opinion segment, Jacob Mchangama talks to Emeritus Professor of Greek Culture at Cambridge University Paul Cartledge. With his intimate knowledge of ancient Greece, we dive deeper into the concepts of free speech and democracy in Athens that were discussed in episode one. What are the differences between free speech in the Athenian democracy and free speech in a modern liberal democracy? What limits did religion set for Athenian free speech? Was Plato a totalitarian? And was the trial of Socrates mostly religious or political?)
Ken White, Disparagement, Contempt, and Disrepute, Make No Law: The First Amendment Podcast, March 15, 2018 (“Simon Tam named his band ‘The Slants’ as a form of self-empowerment, but ran into problems when he tried to tried to register the name as a trademark, and ended up taking the case to the Supreme Court.”)
Abstract: On February 1, 1960, four African American college students entered the Woolworth department store in Greensboro, North Carolina, and sat down at the lunch counter. This lunch counter, like most in the American South, refused to serve black customers. The four students remained in their seats until the store closed. In the following days, they returned, joined by growing numbers of fellow students. These “sit-in” demonstrations soon spread to other southern cities, drawing in thousands of students and coalescing into a protest movement that would transform the struggle for racial equality.
The Sit-Ins tells the story of the student lunch counter protests and the national debate they sparked over the meaning of the constitutional right of all Americans to equal protection of the law. Christopher W. Schmidt describes how behind the now-iconic scenes of African American college students sitting in quiet defiance at “whites only” lunch counters lies a series of underappreciated legal dilemmas—about the meaning of the Constitution, the capacity of legal institutions to remedy different forms of injustice, and the relationship between legal reform and social change. The students’ actions initiated a national conversation over whether the Constitution’s equal protection clause extended to the activities of private businesses that served the general public. The courts, the traditional focal point for accounts of constitutional disputes, played an important but ultimately secondary role in this story. The great victory of the sit-in movement came not in the Supreme Court, but in Congress, with the passage of the Civil Rights Act of 1964, landmark legislation that recognized the right African American students had claimed for themselves four years earlier. The Sit-Ins invites a broader understanding of how Americans contest and construct the meaning of their Constitution.
Abstract: This essay proposes a way to expand FirstAmendment protection for labor protest, and to invalidate restrictions on secondary boycotts and picketing seeking to organize a union, without further jeopardizing the shaky detente in free speech battles between those who believe in heightened scrutiny only of laws restricting political speech and those who advocate heightened scrutiny of all laws, including economic regulations, that restrict speech. A principled line, supported by venerable precedent, exists between laws restricting picketing and speech on matters of public concern in traditional public forums and laws regulating coercive, harassing, or threatening speech inside the workplace. The contours of such a First Amendment theory can be found in the past. When the Court abandoned its deferential reasonableness rule that allowed government to prohibit speech that had a tendency to produce bad consequences in favor of the Brandenburg rule requiring government to make a powerful showing that controversial speech is almost certainly going to incite “imminent lawless action,” it undermined the basis for its labor protest cases of the 1940s and 1950s. In its cases in the early 1980s rejecting FirstAmendment challenges to labor boycotts, it elided the significance of the shift in FirstAmendment jurisprudence by saying that labor protest was coercive, unlike the anti-war or civil rights advocacy it held constitutionally protected in the 1960s, 1970s, and the 1980s or the anti-abortion and homophobic picketing it has held constitutionally protected in the 2010s. But it is no longer plausible to say that labor picketing or calls for secondary boycotts are coercive. To restore intellectual credibility to free speech law, the Court should return to the FirstAmendment of labor protest of the early 1940s before it began to find labor speech to be coercion. Restoring the term “coercion” in section 8(b)(4) (which prohibits secondary boycotts) to its plain meaning has the great benefit of being the meaning that Congress intended. In short, the Court should expand to all workers the robust First Amendment protection for picketing and boycotts that it pivoted toward in 1963, when it abandoned its earlier view that laws or judicial decrees banning civil rights activism were permissible.
Ruthann Robson, New York Judge: Trump Not Immune From Defamation Suit by Summer Zervos, Constitutional Law Prof Blog, March 20, 2018 (“In her opinion in Zervos v. Trump, New York County Supreme Court Justice Jennifer Schecter ruled that the lawsuit for defamation by Summer Zervos against now-President Trump could proceed, denying a motion to dismiss or to stay by Trump based on his presidential status.”)
Carpenter v. United States (Whether the warrantless seizure and search of historical cell phone records revealing the location and movements of a cellphone user over the course of 127 days are permitted by the Fourth Amendment.)
Free-Speech Related Cases: Cert. Pending
Blagojevich v. United States (When the Government prosecutes a public official for soliciting campaign contributions in alleged violation of the Hobbs Act or other federal anti-corruption laws, must the Government prove the defendant made an “explicit promise or undertaking” in exchange for the contribution, McCormick v. United States(1991) (emphasis added), as five circuits require, or “only . . . that a public official has obtained a payment . . . knowing that [it] was made in return for official acts,” Evans v. United States (1992), as three other circuits hold?)
Each of the 50 states has its own collection of campaign finance laws and regulations limiting the freedoms of speech, assembly, and petition. Many of these state laws are poorly written, complex, or both. Despite the advances made in constitutional protections for speech over the last decade, our politics, and campaign finance in particular, remains more highly regulated than at any time prior to the 1970s, and in some important ways more highly regulated than ever. Far from a “wild west” with no rules, arcane campaign finance rules govern the minutiae not only of almost every campaign, but of what ordinary citizens and the groups they belong to can say, and how and when they can say it.
To assess the impact of such speech regulation, we created the Free Speech Index. In the future, we hope to publish similar ratings of state laws on other types of restrictions on political speech. This first installment measures the freedom of individuals, political parties, and groups to contribute to causes and candidates they support.
Executive Summary
This installment of the Free Speech Index rates each state on how well it supports free speech rights in a core area of political participation: the rights of individuals and groups to contribute to and support the candidates and causes of their choice.
To assess each state in this area, we ranked the states on nineteen variables grouped into five categories:
Individual Freedom (the ability of individuals to give to candidates, parties, and political committees, known informally as PACs);
Party Freedom (the ability of political parties to give to or support their candidates);
Group Freedom (the ability of PACs to give to candidates and parties);
Inflation-Indexing Provisions; and
Union and Corporate Freedom (the ability of unions and corporations to donate to candidate campaigns).
States earn points in each category, which are then weighted and combined to produce a total score from 100 to 0 and a letter grade, from A+ to F.
Because the states and legislative districts vary widely in population, contribution limits were compared based on population. For example, a $1,000 per election contribution limit in a New Hampshire State House district with a roughly 2,500 voting-eligible population is much less restrictive than a $1,000 per election South Carolina limit where the State House district has over ten times the number of voters. We also had to account for the wide variety of ways in which states write campaign limit laws. For a full explanation of the five categories and how the scores are computed, see the Methodology section.
Eleven states received an A+ or A grade. The top 11 rated states overall were: Alabama, Nebraska, Oregon, Utah, and Virginia (each tied for #1), Mississippi (#6), Iowa (#7), Indiana (#8), and North Dakota, Pennsylvania, and Texas (each tied for #9). These 11 states are diverse in size, population, geography, and politics. They include large states (Texas), less populated states (North Dakota), eastern states (Pennsylvania), western states (Utah), blue states (Oregon), and red states (Alabama).
The best overall grade, A+, went to Alabama, Nebraska, Oregon, Utah, and Virginia. These five states permit individuals, political parties, and PACs to contribute unlimited sums to the candidates, parties, and causes of their choice. These states also allow unlimited donations from unions and businesses to candidate campaigns. Because none of these states impose limits, all received the same top grade.
The five lowest scores belong to Kentucky, West Virginia, Alaska, Colorado, and Maryland. In the end, eleven states receive an F, a sad commentary on the widespread existence of stringent restrictions on political giving across the country.
States in the middle of the rankings all have their own specific shortcomings. For example, Illinois and Nevada rank 29th and 30th in the Index, respectively. Both receive a C- grade. Yet, their limits are polar opposites. Nevada allows individuals to give unlimited amounts to parties and political committees, but imposes low limits on contributions from parties to candidates and fails to adjust these limits for inflation. Illinois allows parties to provide unlimited support to their candidates, and its limits are adjusted for inflation, but individuals can only give small amounts to parties and PACs.
First Amendment gerrymandering case to be argued in SCOTUS tomorrow
Issues: (1) Whether the majority of the three-judge district court erred in holding that, to establish an actual, concrete injury in a First Amendment retaliation challenge to a partisan gerrymander, a plaintiff must prove that the gerrymander has dictated and will continue to dictate the outcome of every election held in the district under the gerrymandered map; (2) whether the majority erred in holding that the Mt. Healthy City Board of Education v. Doyle burden-shifting framework is inapplicable to First Amendment retaliation challenges to partisan gerrymanders; and (3) whether, regardless of the applicable legal standards, the majority erred in holding that the present record does not permit a finding that the 2011 gerrymander was a but-for cause of the Democratic victories in the district in 2012, 2014, or 2016.
The Costs of Denying Free Speech on Colleges Campuses — Attorneys’ Fees Awards
Too often the costs of denying free speech claims are lost sight of, especially when it is the government who is spending taxpayer dollars to defend patently unconstitutional actions. It would be in the public interest to give greater exposure to these matters and even have some running tally of all such awards involving public colleges. The case below is a recent example of this phenomenon.
Iowa State University’s effort to block a pro-marijuana student group from using the school’s trademarks on T-shirts has cost state taxpayers much. On March 21, 2018, Federal District Judge James E. Gritzner ordered the Defendants in Gerlich v. Leath to pay “the stipulated request for attorney fees in the amount of $570,233.55, [which] is within the range of fair and reasonable fees for the services provided in this matter.”
“Further, the Court concludes the stipulated request for costs in the amount of $27,974.62 is also fair and reasonable in the context of this litigation.”
Total Costs — Damages & Attorney Fees: With the fees for the appeal and the negotiated payments to the students, the total cost paid to the defendants and their attorneys by Iowa State University was $940,000.
→ This does not include the costs of the Iowa Attorney General’s office, which represented ISU administrators.
“The professional stature and reputation of Mr. [Robert] Corn-Revere and Mr. [Michael] Giudicessi are both apparent to the Court and unchallenged by the Defendants. Indeed, it is Mr. Giudicessi’s skill and experience that Defendants utilized in arguing Plaintiffs cannot make the necessary showing that they could not obtain local counsel with the ability and the willingness to take on the case. Quite the contrary, Mr. Giudicessi is extremely able and qualified in the area, and took the case, albeit as local counsel. While Mr. Giudicessi’s credentials in the area of First Amendment litigation are beyond dispute, his substantial experience has been gained largely in representation of news organizations and media companies. The list of clients and representative cases clearly supports that conclusion.”
Michael Giudicessi
“Lead counsel, Mr. Corn-Revere, has similar generic credentials in the First Amendment area, but with a material distinction. He has been involved in a number of cases across the country representing First Amendment rights of students in the academic setting, and has written extensively on First Amendment issues. Thus, while both counsel were qualified to provide the necessary representation in the case at bar, Mr. Corn-Revere came to the case with substantially extended experience specifically applicable to the case. His expertise and command of the legal principles in the area were apparent to the Court in argument, and it is reasonable to conclude made a material contribution to the result.”
Did White House Staff Sign Away Their First Amendment Rights?
This from First Amendment Watch: “The Washington Post reports that senior White House staffers in President Trump’s administration were asked to sign long-term nondisclosure agreements which would prevent them from revealing confidential information. These agreements extended beyond the normal confidentiality obligations around classified information or attorney-client privilege and included fines if they were broken. What exactly is the law that would govern NDAs?”
“Heidi Kitrosser of the University of Minnesota told Reuters that ‘These NDAs strike me as clearly unconstitutional under the First Amendment’ because the First Amendment protects free speech from government restriction, and White House personnel are employed by the government not by President Trump. This is not absolute in all cases. In Garcetti v. Ceballos (2006), the U.S. Supreme Court ruled public employees can be fired or otherwise disciplined for speech connected to their jobs. Several scholars suggested that President Trump does not need NDAs at all – he can just fire employees who have divulged confidential information.” (video link here)
Upcoming Event: The First Amendment and Hate Speech
Date: Thursday, March 29, 2018, 5:30 PM
→ A reception will take place from 5:30 – 6:00 p.m. and the program will take place from 6:30 – 8:30 p.m.
Featured Speakers: This program will begin with a wide-ranging conversation between U.S. Supreme Court Associate Justice Stephen Breyer, moderated by National Constitution Center President and CEO Jeffrey Rosen.
Panel Discussion: Then, a discussion on the First Amendment and hate speech, moderated by National Constitution Center Jeffrey Rosen, will take place featuring the following speakers:
• Jud Campbell, Assistant Professor of Law, University of Richmond School of Law
• Stephen D. Solomon, Marjorie Deane Professor of Journalism, New York University; Author, Revolutionary Dissent: How the Founding Generation Created the Freedom of Speech; Editor, firstamendmentwatch.org
• Nadine Strossen, John Marshall Harlan II Professor of Law, New York Law School; Former President, American Civil Liberties Union
Registration: Admission is free of charge, however, an RSVP is kindly requested. Further information can be found here. Register here
Nadine Strossen to give U.W. Ed Mignon Distinguished Lecture
Date: Monday, April 2, 2018 | 4:30 – 5:30 PM
Location: University of Washington, HUB South Ballroom
Prof. Nadine Strossen
Description: In her book, Hate: Why We should Resist it with Free Speech, Not Censorship, New York Law Professor Nadine Strossen she argues that our political and campus discourse are increasingly filled with charges and counter-charges of “hate speech” to stigmatize and suppress seemingly any speech whose ideas are viewed as hated and hateful. Speech as disparate – and important in our democracy – as campaigning for Donald Trump and advocating for Black Lives Matter, has been denounced as “hate speech.” Moreover, too many political and other leaders make erroneous statements about the legal status of such speech, declaring either that “hate speech is not free speech” or that it is absolutely protected. To the contrary, U.S. law appropriately takes a more nuanced approach, protecting some, but not all, speech that conveys hateful or discriminatory messages.
This lecture will explain why the U.S. approach not only is consistent with core principles of liberty and democracy, but also is the most effective strategy for advancing equality, societal harmony, and individual dignity and psychic well-being. It cites the many past and present social justice advocates, both in the U.S. and worldwide, who concur that these essential goals are thwarted by censorship, but effectively promoted through non-censorial strategies, including counter-speech.
Abstract: The Advanced Introduction to Freedom of Speech provides an overview of major issues in the doctrinal structure of a law of freedom of expression, relevant to discussions of freedom of expression under many national constitutions. Assuming familiarity with basic theories of free expression, this book addresses the implications of reasonable disagreement between legislatures and courts about whether a specific measure violates freedom of expression, the implications of the fundamental proposition that speech can cause harm, the distinction between the coverage of freedom of expression and the protections it affords, and the appropriate doctrinal forms when speech is said to conflict with other rights such as equality, or merely other social interests. The book should be of interest to anyone, including students, teachers, researchers and policymakers wanting to learn more about the freedom of speech and the Law.
Mark Tushnet presents a concise yet comprehensive overview of free expression law, understood as a form of constitutional law. Confronting the major issues of free expression – speech critical of government, libel law, hate speech regulation, and the emerging challenges posed by new technologies – he evaluates the key questions and potential difficulties for future generations.
Contrasting the United States with current law in Europe and elsewhere, Tushnet argues that freedom of expression around the world should reflect deference to legislative judgments unless those judgments reflect inadequate deliberation or bias, and that much of the existing free expression law is consistent with this view.
Key features include:
• Comprehensible for both students of law and non-specialist readers interested in freedom of expression from a legal perspective
• Viewpoints from multiple legal systems including analysis of decisions made by the US Supreme Court and the European Court of Human Rights
• Explains the two legal doctrinal structures: categorical, rule-bound approaches and standards-based approaches
• List of key references for further reading, allowing readers to extend their knowledge of the topic past the advanced introduction.
Forthcoming Book: First Amendment rights of lawyers
Abstract: The First Amendment rights of lawyers are ethereal. Most lawyers fail to realize that courts may deny them access to the First Amendment’s protective shield in many regulatory and disciplinary contexts. Overall, attorneys cannot and should not assume that they can obtain First Amendment protection-especially when acting as an attorney in their role as an “officer of the court.” Yet, it is precisely in the lawyering context-where attorneys engage in speech, association, and petitioning for the very purpose of securing client rights, invoking law, enabling the judicial power, and obtaining justice-that the need for First Amendment protection is the most acute. If regulators silence that voice, they silence justice. From overarching theory to specific real-world contexts, this illuminating book provides a critical resource for lawyers, judges, and scholars to understand the relationship between the First Amendment rights of lawyers and the integrity of the justice system.
Abstract: John Roberts assumed his position as Chief Justice of the United States just prior to the commencement of the October 2005 Term of the Supreme Court. That was seven years after Google was incorporated, one year before Facebook became available to the general public, and two years before Apple released the first iPhone. The twelve years of the Roberts Court have thus been a period of constant and radical technological innovation and change, particularly in the areas of mass communication and the media. It is therefore somewhat astonishing how few of the Roberts Court’s free speech decisions touch upon new technology and technological change. Indeed, it can be argued that only two cases directly address new technology: Brown v. Entertainment Merchants Association on video games, and Packingham v. North Carolina on social media. Packingham, it should be noted, is the only Roberts Court free speech case directly implicating the Internet. Even if one extends the definition of cases addressing technology (as I do), only four cases, at most, can be said to address technology and free speech.
Prof. Ashutosh Bhagwat
It seems inevitable that going forward, this is going to change. In particular, recent calls to regulate “fake news” and otherwise impose filtering obligations on search engines and social media companies will inevitably raise important and difficult FirstAmendment issues. Therefore, this is a good time to consider how the Roberts Court has to date reacted to technology, and what that portends for the future. This paper examines the Roberts Court’s free speech/technology jurisprudence (as well as touching upon a few earlier cases), with a view to doing just that. The pattern that emerges is a fundamental dichotomy: some Justices are inclined to be Candides, and others to be Cassandras. Candide is the main character of Voltaire’s satire Candide, ou l’Optimisme, famous for repeating his teacher, Professor Pangloss’s mantra “all is for the best” in the “best of all possible worlds.” Cassandra was the daughter of King Priam and Queen Hecuba of Troy in Greek mythology, condemned by the god Apollo to accurately prophesize disaster, but never to be believed. While not all justices fit firmly within one or the other camp, the Roberts Court is clearly divided relatively evenly between technology optimists and technology pessimists.
The paper begins by analyzing the key technology/free speech decisions of the Roberts Court, and classifying the current Justices as Candides or Cassandras based on their opinions or votes in those cases. In the remainder of the paper, I offer some thoughts on two obvious questions. First, why is the Court divided between Candides and Cassandras and what qualities explain the divergence (spoiler: it is not simply partisan or political preferences). And second, what does this division portend for the future. As we shall see, my views on the first issue are consistent with, and indeed closely tied to, Greg Magarian’s analysis of Managed Speech on the Roberts Court. On the second question, I am modestly (but only modestly) optimistic that the Candides will prevail and that the Court will not respond with fear to new technology. I am, in other words, hopeful that the Court will fend off heavy-handed efforts to assert state control over the Internet and social media, despite the obvious threats and concerns associated with that technology. I close by considering some possible regulatory scenarios and how the Court might respond to them.
Abstract: Constitutional law, technological innovations, and the rise of a cultural “Right to Know” have recently combined to yield “fake news,” as illustrated by an anti-abortion citizen-journalist sting operation that scammed Planned Parenthood. We find that the First Amendment, as construed by the Supreme Court, offers scant protection for activist journalists to go undercover to uncover wrongdoing, while providing substantial protection for the spread of falsehoods. By providing activists the means to reach sympathetic slices of the public, the emergence of social media has returned journalism to its roots in political activism, at the expense of purportedly objective and truthful investigative reporting. But the rise of “truthiness”—that is, falsehoods with the ring of truth, diffused through new forms of communication—threatens the integrity of the media. How to respond to these contradictions is a growing problem for advocates of free speech and liberal values more generally.
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Ari Ezra Waldman, The Marketplace of Fake News, University of Pennsylvania Journal of Constitutional Law (forthcoming 2018)
Balkin vs Graber on Stormy Daniels, non-disclosure agreements, & the First Amendment
This from Professor Jack Balkin over at Balkinization: “Mark Graber has argued that the First Amendment should protect Stormy Daniels’ violation of her nondisclosure agreement with Donald Trump. I doubt that this is correct– for reasons described below, I think her best argument sounds in contract law. But even if Mark is correct, I want to argue in this post that there are very good reasons why the First Amendment generally does not forbid enforcement of contacts that prevent the disclosure of sensitive personal information. Most companies’ privacy policies depend on this proposition. These considerations are especially important in the digital age. We should not use First Amendment doctrine to make it difficult if not impossible for governments to implement reasonable privacy protections that will prevent the disclosure and manipulation of sensitive personal information. . . .”
Carpenter v. United States (Whether the warrantless seizure and search of historical cell phone records revealing the location and movements of a cellphone user over the course of 127 days are permitted by the Fourth Amendment.)
Free-Speech Related Cases: Cert. Pending
Blagojevich v. United States (When the Government prosecutes a public official for soliciting campaign contributions in alleged violation of the Hobbs Act or other federal anti-corruption laws, must the Government prove the defendant made an “explicit promise or undertaking” in exchange for the contribution, McCormick v. United States(1991) (emphasis added), as five circuits require, or “only . . . that a public official has obtained a payment . . . knowing that [it] was made in return for official acts,” Evans v. United States (1992), as three other circuits hold?)
The case is Adelson v. Harris (S.D., N.Y., 12 Civ. 6052 (JPO) (March 29, 2018). The matter involved a claim by “billionaire casino magnate Sheldon G. Adelson against the National Jewish Democratic Council for a 2012 online petition that stated Adelson personally approved of prostitution in his Asian casinos.” In the latest round of this case, and after trips to the Second Circuit and the Nevada Supreme Court, Mr. Adelson lost yet again.
“This is a defamation action filed by Sheldon Adelson arising out of the 2012 presidential campaign. Adelson brought suit against David A. Harris,Marc R. Stanley, and the National Jewish Democratic Council (“NJDC”) (together, “Defendants”) for libel based on a publication on NJDC’s website in July 2012. This Court dismissed Adelson’s complaint in 2013, and that dismissal was affirmed by the Second Circuit following a certification of questions to the Nevada Supreme Court. Presently before the Court is Defendants’ motion for attorney’s fees and costs.”
Lee Levine (one of the lawyers for the Defendants)
“In 2013, this Court dismissed Adelson’s complaint under both Rule 12(b)(6) of the Federal Rules of Civil Procedure and Nevada’s anti-strategic litigation against public participation (“Anti-SLAPP”) statute, Nev. Rev. Stat. § 41.635–670. The Court also concluded that Defendants were entitled to reasonable attorney’s fees and costs under Nevada’s Anti-SLAPP statute, Nev. Rev. Stat. § 41.670(1). See Adelson v. Harris, 973 F. Supp. 2d 467 (S.D.N.Y. 2013). . . .”
“The Nevada Supreme Court answered [the common law] questions [posed to it] in a manner consistent with this Court’s earlier decision. See Adelson v. Harris, 402 P.3d 665 (Nev. 2017). The Second Circuit then affirmed this Court’s decision dismissing the complaint. See Adelson v. Harris, 876 F.3d 413 (2d Cir. 2017). . . .”
“The parties have briefed Defendants’ fee request in two rounds of filings: first for the district court phase of litigation (i.e., fees and costs incurred from the beginning of the case through September 30, 2013); and second for the appellate phase (i.e., fees and costs incurred from October 1, 2013, through December 31, 2017). Each is addressed in turn. . . .”
“Defendants’ application for attorney’s fees and costs pursuant to Nev. Rev. Stat. § 41.670 is GRANTED. Plaintiff Adelson is hereby ordered by pay to Defendants the amount of $1,909,476.50 in fees and $55,716.64 in costs, for a total of $1,965,193.14.”
“Former American Idol contestant Corey Clark lost his false light claim against E! Entertainment Television, as a federal district court judge ruled he failed to show that the defendant acted with actual malice. . . .”
“Clark appeared on Season Two of American Idol and did well, making the top 10.However, show producers disqualified him from the show after there was a report about Clark’s arrest in Kansas that he allegedly failed to disclose.”
“Clark later contended that he was romantically involved with Paula Abdul, music superstar and one of the three judges on American Idol.Clark’s claim received widespread publicity, including a segment on ABC’s Primetime.”
E! True Hollywood Story, a documentary series about music stars, did a story on Abdul and referenced the Clark controversy.The documentary did not interview Clark.However, the story did quote a USA TODAY reporter, stating: ‘At the end of the day maybe only the two of them [Clark and Abdul] know what really happened.'”
“The documentary did explain that Clark had been arrested but was cleared of the charges.”
“Clark sued both E! Entertainment Television and Fox Broadcasting Company in federal court for two claims: (1) defamation and (2) false light invasion of privacy. In 2014, a federal district court dismissed both claims against Fox and dismissed the defamation claim against E! Entertainment Television. The only claim remaining was the false light invasion of privacy claim against E! Entertainment Television. . . .”
“On March 26, 2018, U.S. District Court Judge William L. Campbell, Jr. granted summary judgment to E! Entertainment Television and ruled against Clark on his false light claim in Clark v. E! Entm’t TV, LLC.The court noted that Clark had the burden to show by clear and convincing evidence that E! Entertainment Television acted with actual malice. . . .”
Michael Carroll writing for Watchdog reports that a “restaurant owner and chef has filed a First Amendment lawsuit against the Virginia Alcoholic Beverage Control Authority, alleging that the state’s restrictions on “happy hour” advertising violate his free speech rights. Chef Geoff Tracy, a cookbook author and owner of restaurants in Virginia, Maryland and Washington, D.C., contends the rules prevent him from describing happy hour specials at his Virginia restaurant in a creative way. The Virginia ABC regulations prevent restaurant owners from listing actual prices in their advertising or from using creative phrases other than ‘happy hour.’ ‘There’s no good reason for this,’ Jonathan Wood, an attorney with the Pacific Legal Foundation in Washington, told Watchdog.org. ‘Virginia is plainly targeting speech.’ . . .”
Erica Goldberg: S. Cal. ACLU should not endorse speaker-identity discrimination
Excerpt: “. . . [Recently, Melissa Goodman of the ACLU of Southern California wrote] an article in Variety about how California should use its tax credits to ensure more minority representation in the film industry. That is a laudable proposal, except that it appears constitutionally suspect.”
“The First Amendment, whose protections your organization should champion above all else, does not allow the state to discriminate on the basis of speaker identity when providing benefits or meting out punishments. Diversity and inclusion are important goals, which are fair and benefit all of us. However, unless the government is discriminating against individuals, these goals do not implicate civil liberties. Instead, the proposal to favor certain film studios using massive amounts of tax dollars in order to produce movies with specific content implicates the very civil liberties that give your organization its name.”
“Your nonpartisan credibility, and historically staunch devotion to protecting civil liberties, are now most needed, but seem to be less important than your political aims. As you become more and more associated with partisan advocacy, we will lose our best defender of civil liberties. I hope that does not happen.”
→Note: The ACLU of Southern California was invited to respond.
2018 FIRE Faculty Conference: Coming to Chicago this fall
This from Julia Schwarz over at FIRE (March 30, 2018)
FIRE is excited to announce that our 2018 Faculty Conference will take place from Oct. 11-13 in Chicago, Illinois, at Loyola University Chicago’s downtown Water Tower campus, with accommodations at the nearby Omni Hotel.
If you’re a faculty member or advanced graduate student who is interested in presenting a paper or a poster at the conference, please check out the call for proposals for more details. There is one month left to apply: we will be accepting proposal submissions through April 30!
As with last year’s faculty conference, our goal for the meeting in Chicago is to bring together faculty from a range of disciplines and institutions, who have a variety of viewpoints, to present research and discuss issues related to academic freedom and freedom of expression on campus. We encourage all interested faculty — irrespective of discipline, institution, or position — to submit a proposal.
Those accepted to present papers at the conference will receive an honorarium of $3,000, in addition to reimbursement for travel and lodging. Those presenting posters will receive reimbursement for travel and lodging.
If you are interested in attending the conference (rather than presenting), an announcement on how to apply to attend will be available later this spring. If you have any questions or would like more information, please email us at facultyconference@thefire.org.
Two New Books from Cambridge on Free Speech Abroad
Abstract: This volume explores how societies are addressing challenging questions about the relationship between expression, traditional and societal values, and the transformations introduced by new information communications technologies. It seeks to identify alternative approaches to the role of speech and expression in the organization of societies as well as efforts to shape the broader global information society. How have different societies or communities drawn on the ideas of philosophers, religious leaders or politicians, both historical and contemporary, that addressed questions of speech, government, order or freedoms and applied them, with particular attention to applications in the digital age? The essays include a wide variety of cultural and geographic contexts to identify different modes of thinking. The goal is to both unpack the ‘normative’ internet and free expression debate and to deepen understanding about why certain internet policies and models are being pursued in very different local or national contexts as well as on a global level.
Abstract: International and national armed conflicts are usually preceded by a media campaign in which public figures foment ethnic, national, racial or religious hatred, inciting listeners to acts of violence. Incitement on Trial evaluates the efforts of international criminal tribunals to hold such inciters criminally responsible. This is an unsettled area of international criminal law, and prosecutors have often struggled to demonstrate a causal connection between speech acts and subsequent crimes. This book identifies ‘revenge speech’ as the type of rhetoric with the greatest effects on empathy and tolerance for violence. Wilson argues that inciting speech should be handled under the preventative doctrine of inchoate crimes, but that once international crimes have been committed, then ordering and complicity are the most appropriate forms of criminal liability. Based in extensive original research, this book proposes an evidence-based risk assessment model for monitoring political speech.
Abstract: Social media platforms have emerged as formidable regulators of online discourse, and their influence only grows as more speech activity migrates to online spaces. The platforms have come under heavy criticism, however, after revelations about Facebook’s role in amplifying disinformation and polarization during the 2016 presidential election. Policymakers have begun to discuss an official response, but what they envision – namely, a set of rules for online political ads – addresses only a small corner of a much wider set of problems. Their hesitancy to go deeper is understandable. How would government even go about regulating a social platform, and if it did, how would it do so without intruding too far on the freedom of speech?
This Article takes an early, panoramic view of the challenge. It begins with a conceptual overview of the problem: what kinds of risks do online platforms present, and what makes these risks novel compared to traditional FirstAmendment concerns? The Article then outlines the eclectic and sometimes exotic policies regulators might someday apply to problems including false news, private censorship, ideological polarization, and online addiction. Finally, the Article suggests some high-level directions for FirstAmendment jurisprudence as it adapts to online platforms’ new and radically disruptive presence in the marketplace of ideas.
Abstract: The time has come to consider legislation that would guarantee meaningful speech rights in online spaces. This Article evaluates a range of possible approaches to the problem. These include 1) an administrative monitoring and compliance regime to ensure that content moderation policies hew close to First Amendment principles; 2) a “personal accountability” regime handing control over content moderation to users; and 3) a relatively simple requirement that companies disclose their moderation policies. Each carries serious pitfalls, but none is as dangerous as option 4): continuing to entrust online speech rights to the private sector.
Abstract: A longstanding mystery of constitutional law concerns how the Free Speech Clause interacts with “generally applicable” legal restrictions. This Article develops a new conceptual framework for working through this puzzle. It does so by extracting from prior Supreme Court rulings an approach that divides these restrictions into three separate categories, each of which (at least presumptively) brings into play a different level of judicial scrutiny.
— An example of the first and most closely scrutinized category of generally applicable laws—that is, laws that place a “direct in effect” burden on speech—is provided by breach-of-the-peace statutes. These laws are generally applicable because they cover a great deal of behavior that has nothing to do with speech, but they also often outlaw speech that triggers a violent response. To the extent these laws do so, they proscribe speech in a direct-in-effect way, in the key sense that their application depends on the communicative impact of the regulated activity.
— In contrast, the second category of generally applicable laws, which trigger only intermediate scrutiny, has nothing to do with restricting speech based on any listener reaction. In United States v. O’Brien, for example, the government relied on an across-the-board ban on draft-card destruction to prosecute a war protester who burned his card as a form of symbolic dissent. This case, the Court concluded, involved merely an “incidental” (as opposed to a direct-in-effect) burden on speech because the challenged statute covered each and every instance of draft card burning wholly apart from the impact that any such action might have on the mind of any observer.
— The third category of generally applicable laws received the Court’s attention in Arcara v. Cloud Books, Inc., which involved a challenge to an ordinance that required the closure of any place of business— in this case a bookstore—where prostitution or other “lewd” activities had occurred. Obviously, the closing of a bookstore imposed a burden on speech. But this burden did not trigger any First Amendment scrutiny because the defendants in Arcara were not (as was the defendant in O’Brien) punished for an activity that itself involved expression; rather, those defendants were punished for tolerating on-premises acts of lewdness, which did not involve speech at all. Put another way, the case involved only a “doubly incidental” burden on speech-that is, the sort of burden imposed by a wide range of laws (including tax laws, labor laws, and health laws) that do not operate on speech itself but instead diminish the resources or capacity of would-be speakers to engage in expressive activity.
This Article develops in detail this tripartite structure for analyzing Free Speech Clause challenges to generally applicable laws. In particular, it highlights the complexity of this body of law, identifying the rich mix of exceptions to the three core rules around which the Court’s governing doctrine is organized. In addition, this Article shows that-and explains why-the Court has taken a fundamentally different approach to generally applicable laws in the free-speech and free-exercise-of-religion contexts. Along the way, the Article notes that the current Court has signaled a potential willingness to tinker with existing doctrine, including by expanding Free Speech Clause limits on generally applicable anti-discrimination laws. At the same time, this Article posits that the key features of the three-part approach toward which the Court has haltingly, but discernibly, moved over the years comports with overarching First Amendment theory.
Discussion on the First Amendment: Jud Campbell of University of Richmond School of Law, Nadine Strossen of New York Law School, & Stephen D. Solomon of New York University. National Constitution Center President and CEO Jeffrey Rosen moderates.
Why did the medieval Abbasid Caliphs have almost all ancient Greek works of philosophy and science translated into Arabic? How did the long list of medieval Muslim polymaths reconcile abstract reasoning with Islamic doctrine? Who were the radical freethinkers that rejected revealed religion in favor of reason in a society where apostasy and heresy were punishable by death? And why are developments in the 11th century crucial to understanding modern controversies over blasphemy and apostasy, such as the Salman Rushdie affair and the attack on Charlie Hebdo?
Cato Video
Cato Institute Book Forum: Keith Whittington’s Speak Freely: Why Universities Must Defend Free Speech (featuring the author Keith E. Whittington, William Nelson Cromwell Professor of Politics, Princeton University; with comments by Ilya Somin, Professor of Law, George Mason University; moderated by John Samples, Vice President, Cato Institute)
YouTube: The First Amendment — What Limits? . . . & More
The First Amendment: What Are Its Limits? (Susan Benesch, director of the Dangerous Speech Project, Jennifer Peter, managing editor of The Boston Globe, and Carol Rose, executive director of the ACLU of Massachusetts, discuss contemporary First Amendment issues. Award-winning journalist and senior correspondent for WBUR’s Bostonomix Bruce Gellerman moderates.)
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The First Amendment needs a lot of help — Dan Gilmore
Carpenter v. United States (Whether the warrantless seizure and search of historical cell phone records revealing the location and movements of a cellphone user over the course of 127 days are permitted by the Fourth Amendment.)
Free-Speech Related Cases: Cert. Pending
Blagojevich v. United States (When the Government prosecutes a public official for soliciting campaign contributions in alleged violation of the Hobbs Act or other federal anti-corruption laws, must the Government prove the defendant made an “explicit promise or undertaking” in exchange for the contribution, McCormick v. United States(1991) (emphasis added), as five circuits require, or “only . . . that a public official has obtained a payment . . . knowing that [it] was made in return for official acts,” Evans v. United States (1992), as three other circuits hold?)
“Lust on Trial” is the story of the most extraordinary efforts in American history to make us a moral Christian nation . . . . [It is the story of a man] who truly believed that lust would lead mankind to the eternal fires of hell. [Thus, it] was his mission throughout his life to destroy any materials that would arouse lust . . . . And he pursued that mission relentlessly throughout his career. — Amy Werbel
Anthony Comstock
Anthony Comstock (1844-1915): By any and all measures, he was the greatest enemy of free speech in America; and his legacy of suppression endured long after he died. Intoxicated with his own sense of moral righteousness and obsessed with what he deemed to be immoral expression, Comstock (a devoted evangelical) went after his targets with ruthless passion. No book, dime novel, newspaper, magazine, pamphlet, manual, photograph, printing plate or even postcard was safe from his censorial clutches. This founder of the New York Society for the Suppression of Vice roamed his world searching for any signs of immorality. Later, he succeeded in urging Congress to pass the Comstock Law. Under it, it was illegal to mail any “obscene, lewd, or lascivious” materials. Likewise, it was unlawful to print or distribute anything counseling or even discussing abortion, contraception, or the prevention of venereal disease. Armed with such powers, this special agent of the United States Postal Service prosecuted and persecuted the impure with a manic vengeance. To buttress his influence, he also wrote books — e.g. Frauds Exposed(1872) and Traps for the Young (1883)
“For more than four decades,” wrote Robert Corn-Revere, “Comstock terrorized writers, publishers, and artists—driving some to suicide . . . . George Bernard Shaw popularized the term ‘Comstockery’ to mock the unique blend of militant sanctimony and fascination with the lurid that marks American prudishness.”
Now comes a major new book on Comstock and his censorial calling, a book a decade in the making and rich with historical details based on original sources. The book is titled Lust on Trial: Censorship and the Rise of American Obscenity in the Age of Anthony Comstock (Columbia University Press). Its author is Amy Werbel who is an Associate Professor of the History of Art at the Fashion Institute of Technology.
Abstract: Lust on Trial: Censorship and the Rise of American Obscenity in the Age of Anthony Comstock offers a new and unadulterated view of the risqué behaviors and complex sexualities of Americans in the Gilded Age and Progressive Eras, and a fresh perspective on legal efforts to expand civil liberties before World War I. Extensive new research conducted in dozens of public and private archives makes it possible for the first time to fully tell the story of Anthony Comstock’s censorship of American visual culture, and to publish examples of the “obscenities” he suppressed. Lust on Trial illuminates the complex relationship between censorship and cultural change, and offers thought-provoking insight into our nation’s long struggle to live up to the promise of the First Amendment.
Related
→YouTube video of Professor Werbel discussing her book
“Amy Werbel’s Lust on Trial offers a brilliant analysis of the life and times of Anthony Comstock, the fiercely religious moralist who led the national campaign to rid the United States of sexual expression from 1873 until his death in 1915. As Werbel powerfully demonstrates, Comstock’s efforts to persuade the nation that such expression “corrupts the mind . . . and damns the soul” perilously threatened our nation’s separation of church and state. This lesson in how religious fanaticism can destroy our freedom is now more important than ever.” – Geoffrey R. Stone
“In this vibrant history, Amy Werbel explores the legal and cultural battles surrounding the censorship of “obscene” materials in late nineteenth and early twentieth century New York. Lust on Trial not only mines the history of censorship and repression in a modernizing America, but also sheds light on its legacy for current debates.” – Nadine Strossen
Discounted priced for FAN readers
→ If you add the book to your cart, you can then use the code cup30 for a significant discount, go here
(look for discount code box — $10.50 off the $35.00 list price — much cheaper than Amazon!)
Association of University Presses issues statement on censorship
The Association of University Presses (AUPresses) yesterday issued a statement of guiding principles addressing attempted censorship in a global network of scholarly communications. The Board of Directors of AUPresses approved the statement to affirm “the fundamental importance of the integrity of the scholarship entrusted to us and the essential role of university presses in supporting the values which safeguard that integrity.”
University presses around the world serve scholars — as authors and readers — on a global scale, with local impact. The Association understands that in this more closely networked world, publishers may receive more frequent requests to censor or otherwise alter the content they have published.
“All attempts to censor the scholarly record must be met with the deepest concern,” reads “Facing Censorship: A Statement of Guiding Principles.” The Association recognizes that individual publishers may be faced with difficult situations, wherein the theoretically complementary values of access and integrity, intellectual freedom and cultural sensitivity, equal treatment of customers and the safety of staff, may suddenly be in tension. A publisher should be able to turn to the support of its home institution and the community of university presses when facing such challenges.”
Nicole Mitchell (credit: Hayley Young)
“We have recently seen cases where scholarly publishers have been forced to grapple with these issues in real time. Good faith arguments attempt to balance questions of access and integrity with sometimes very different results, and we all recognize the seriousness of any ultimate decision,” said Peter Berkery, AUPresses Executive Director.
Nicole Mitchell, Association President, and Director, University of Washington Press, added, “The board felt that it was important for the Association to make a clear affirmation of our community’s values and to provide some guidance for any of our member presses who may be called upon to change the shape of the scholarly record.”
Headline — “First Amendment: Skim Milk Labeling Leads Maryland Dairy to Sue FDA”
This from Wyatt Bechtel writing for the Dairy Herd: “A Maryland dairy farm with its own milk bottling business is suing the U.S. Food and Drug Administration over the labeling of skim milk and if it violates the First Amendment. A lawsuit was filed by the non-profit group the Institute for Justice with Randy and Karen Sowers, owners of South Mountain Creamery near Frederick, Maryland, on April 5 against the FDA.”
“At issue is South Mountain Creamery’s labeling of skim milk. The dairy milks 550 cows and bottles milk on-farm selling to about 5,000 customers. South Mountain Creamery is attempting to sell pasteurized, all-natural skim milk in Pennsylvania. However, the FDA wants the milk to be labeled as “imitation skim milk” or “imitation milk product” because it does not contain added vitamins.The Sowers and Institute for Justice believe this is a government overreach and violation of the First Amendment.”
“The government does not have the power to change the meaning of words or ignore common sense,” saidJustin Pearson, a senior attorney with the Institute for Justice, which represents South Mountain Creamery in court. “The FDA is creating confusion where there was none whatsoever. People know what skim milk means, but they have no idea what ‘imitation milk product’ means. Pure, all-natural skim milk is not an ‘imitation’ of anything.”
As noted on The Institute For Justice’s website, this dairy “case is part of IJ’s National Food Freedom Initiative. This nationwide campaign brings property rights, economic liberty and free speech challenges to laws that interfere with the ability of Americans to produce, market, procure and consume the foods of their choice.”
Florida public employee suit over social media post allowed to continue
“He’s not proud of what he said,” said his Orlando attorney, Howard Marks. “He’s very upset about the issue. Looking back, would he have used the exact words? I doubt it. But as a government employee, you have a First Amendment right to say these things and not get fired.” — Orlando Sentinel (April 11, 2018)
This from David Hudson over at The First Amendment Encyclopedia: “The controversy began when B. Stanley McCullars learned that Orange County/Osceola County State Attorney Aramis Ayala announced at a March 2017 press conference that her office would not seek the death penalty in any cases.”
“McCullars was the assistant finance director for the clerk and court and comptroller of Seminole County.”
“McCullars disagreed with that position and expressed his disagreement in colorful terms: ‘maybe she [Ayala] should get the death penalty’ and ‘she should be tarred and feathered if not hung from a tree.’ Three days later, McCullars’ boss, Grant Maloy – the Seminole County Clerk of Court, told McCullars that the post presented a First Amendment issue and McCullars’ job was safe. However, the next day Maloy terminated McCullars.”
“. . . U.S. District Court Judge for the Middle District of Florida Paul G. Byron declined to dismiss the lawsuit and declined to grant qualified immunity to Malloy. The judge noted the U.S. Supreme Court’s seminal public employee decision Pickering v. Board of Education (1968), in which the Court balanced a public employee’s right to engage in free speech on a matter of public concern against a public employer’s right to an efficient governmental operation. . . .”
Personal Reflections: Paul Smith on Masterpiece Case
Over at Balkanization, Paul M. Smith writes: ” [A]s a gay person I see fundamental problems with [the approach of those who sympathize with the baker and his claim of being forced to violate his beliefs]. . . . Why? In part, of course, it’s because we will bear the brunt of the harm if the Supreme Court says it’s ok for a retail business owner to follow his own beliefs when they conflict with anti-discrimination protections. But it’s more than that. Because of our life experience, we know the real cost of living in a place where we might be refused if we walk into a business and ask for service simply because of who we are.”
Paul M. Smith
“. . . . [The hard-won reassurance that gays will be accepted and treated fairly and with respect] will go away, though, if the Court recognizes the right of a business owner to refuse service to us based on religious or moral disapproval of gay people. No matter how “out and proud” one may be, there is still lurking in the background the experience of struggle to get there, and there is still the daily navigation of the world choosing when or whether to be visibly who you are. And that question becomes even more fraught if there is a risk, every time we walk into a business, that we will be sent away, judged morally unworthy by the person whose goods or services we were just trying to buy — or if, as the Justice Department told the Supreme Court, businesses have a right to post signs in shop windows saying ‘same-sex couples not served.'”
“People in this country have every right to personally disapprove of my [gay] marriage. But they should not have a right to translate those beliefs into exclusionary policies when they open a business like the Masterpiece Cakeshop. They can choose who to associate with in their private lives. But not when they open a business serving the public. That is where we have always drawn the line in this country, and that shouldn’t change just because a purveyor of really excellent wedding cakes asks for the right to refuse to serve us because of who we are.”
“So to Speak” Podcast — Lee Levine on Defamation
In January, President Donald Trump called America’s libel laws “a sham and a disgrace.” Are they? On this episode of So to Speak: The Free Speech Podcast, we sit down with Ballard Spahr Senior Counsel Lee Levine to discuss what America’s libel “laws” really are — and are not. Nico Perrino interviews Mr. Levine.
“Clear and Present Danger” Podcast — The not-so-Dark Ages
Find out why the Middle Ages were as much a period of reason and inquiry as inquisition and persecution.
Why was the famous medieval intellectual Pierre Abelard castrated, forced to burn his works, and condemned to silence by the church? How did the combination of Aristotelian philosophy and the development of universities institutionalize reason and science? What are the parallels between clashes over academic freedom in the 13th and 21st centuries? All this and much more in Clear and Present Danger — episode 6! (Narrated by Jacob Mchangama)
“President Trump blocked some of his critics on his Twitter handle, @realDonaldTrump, prompting a lawsuit arguing that such action violated their First Amendment rights. The lawsuit raised questions about the use of social media sites by public officials. Clearly, a personal website of a public figure is not subject to First Amendment restrictions, and so the site operator can block users. But a site run by the government, or run by a public official for his public business, would likely be categorized as a limited public forum protected by the First Amendment. Officials would violate the First Amendment if they discriminated against posters because of their viewpoint. But is @realDonaldTrump a personal site or an official government site? That’s a key question. He started the account in 2009, when he was a private citizen, but now uses it to share policy statements and his views on public issues. For news, analysis, history & legal background read on. . . .”
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Eugene Volokh, Free Speech Rights, Parental Rights, and Children with Gender Dysphoria, The Volokh Conspiracy, April 7, 2018, (“An interesting Arizona appellate decision rejecting a court’s assignment of a treating therapist, and rejecting a gag order that limited parents’ discussions with the child.”)
Gwen Torges, What does free speech on campus mean?, Indiana University, April 5, 2018 (“What does free speech on a university campus mean? IUP political science associate professor Gwen Torges, a Constitutional law scholar and member of IUP’s Free Speech Project, talks about free speech issues on campus, ranging from social media to controversial speakers on campus to free speech in the classroom. Professor Torges talks about how “free speech is a two-way street” and how words are powerful, and urges responsibility on how words are used.”)
2017-2018 Term: First Amendment Free Expression Cases
Carpenter v. United States (Whether the warrantless seizure and search of historical cell phone records revealing the location and movements of a cellphone user over the course of 127 days are permitted by the Fourth Amendment.)
Free-Speech Related Cases: Cert. Pending
Blagojevich v. United States (When the Government prosecutes a public official for soliciting campaign contributions in alleged violation of the Hobbs Act or other federal anti-corruption laws, must the Government prove the defendant made an “explicit promise or undertaking” in exchange for the contribution, McCormick v. United States(1991) (emphasis added), as five circuits require, or “only . . . that a public official has obtained a payment . . . knowing that [it] was made in return for official acts,” Evans v. United States (1992), as three other circuits hold?)
A Law Day Conversation With Rod Rosenstein, Deputy Attorney General of the United States
Tuesday, May 1, 2018 / 2:00 p.m.
Newseum, Walter and Leonore Annenberg Theater, Washington, D.C.
To commemorate Law Day, the Newseum Institute presents a special program featuring Rod Rosenstein, deputy attorney general of the United States, in a wide-ranging discussion on the rule of law, the First Amendment and the mission of the Department of Justice.
The conversation will be moderated by Ronald Collins, a constitutional law and First Amendment expert and the Harold S. Shefelman Scholar at the University of Washington School of Law.
Deputy AG Rod Rosenstein
Rosenstein was sworn in as the 37th Deputy Attorney General of the United States on April 26, 2017, and has served in the Department of Justice for nearly three decades under several presidents and attorneys general.
Law Day is held on May 1 every year to celebrate the role of law in our society and to cultivate a deeper understanding of the legal profession.
→Register here (no admission charge) 4-18-18: SOLD OUT
