FAN 61 (First Amendment News) Past & Prologue — Ralph Young on the History of Dissent & David Skover on Free Speech in a Robotic Era

In this post I highlight two new works (one on dissent, the other on data, etc.) to emphasize the importance of history, on the one hand, and the challenge of new technologies to inform the way we think about the First Amendment, on the other hand.

Let me start with history: Take dissent out of the cultural and constitutional equation and what remains is faint-hearted freedom. Dissent gives free speech its steel. The First Amendment’s greatest virtue is the protection of those messages we fear and/or loathe — those sent our way by insufferable Anti-Federalists, abolitionists, suffragists, unionists, anarchists, Communists, atheists, civil-rights activists, anti-war pacifists, gay-rights antagonists,  and even nihilists and racists.

Professor Ralph Young

Enter Temple University Professor Ralph F. Young and his new book, Dissent: The History of an American Idea (New York University Press, 2015). Generally speaking, this 600-page tome, which follows Young’s various volumes titled Dissent in America, does a splendid job of chronicling much of the evolution of dissent in America. His panoramic account spans much in the history of dissent from the plight of the Puritans, to the fate of Native American Indians, to the struggle of abolitionists, to the campaigns of labor activists, to the crusades of feminists, to the sit-ins of civil rights demonstrators, to the marches of war protestors, to the anti-Establishment songs of Bob Dylan, to the Stonewall riots, to the politics of the Tea Party, to the antics of the Occupy Wall Street movement, and more! It is a remarkable achievement.

Bob Dylan & Joan Baez (photo: Daniel Kramer)

Sadly missing from this otherwise impressive survey of dissent in the United States is any mention of the likes of:

• Benjamin Franklin Bache, the radical revolutionary-era journalist who published the Aurora, the Philadelphia paper openly critical of Presidents Washington and Adams. (See my “Benjamin Bache & the fight for a free press,” The First Amendment Center (July 14, 2008),
• Theodore Schroeder and the Free Speech League (the dissidents who took radical exception to America’s sexual mores) — and then there is the man who turned their utopia into a nightmare, Anthony Comstock,
• The long unpopular Jehovah’s Witnesses’s and the plight of this religious sect that dared to teach its children not to salute graven images, including the United States flag,
• The ribald comedian Lenny Bruce who was persecuted and prosecuted for poking fun at the religious and political establishments,
• The world-champion boxer Cassius Clay (Muhammad Ali) who put his career on the economic line to protest the Vietnam war, and
• Larry Flynt, the tasteless pornographer who had the nerve to mock the mother of the Reverend Jerry Falwell.

That said, there is still more than a big bundle of worthwhile and eye-opening historical reading to be found between the covers of this engaging volume.

→ For a philosophical account of what exactly constitutes dissent, see Collins & Skover, On Dissent: Its Meaning in America (Cambridge University Press, 2013).

→ Forthcoming: Stephen J. Solomon, Revolutionary Dissent (Palgrave Macmillan, January 2016)

→ Disclosure: Though an ad for Dissent: The History of an American Idea appears on this page, I had no involvement with it and was not otherwise influenced (positively or otherwise) by it.

* * *  * 

Venturing on into the future: On May 26th Seattle University Law Professor David Skover will speak at the Third Annual Governance of Emerging Technologies Conference in Scottsdale, Arizona. His remarks will be delivered at the outset of a panel discussion entitled “Robotics & Autonomous Systems.” The panel will be moderated by Wendell Wallach. The other panelists are Kate Darling and Greg Garvey.  

Professor David Skover

Professor Skover’s remarks are based on a work-in-progress, tentatively titled “Intentionless Free Speech: Robots & Receivers” (of which I am the co-author) (NB: We chose the term “intentionless” because it conveys a meaning quite different than “unintentional.”) In brief, Skover’s remarks will examine why First Amendment coverage should be assigned to robotic expression, quite apart from whether such expression merits constitutional protection when balanced against a spectrum of potential harms. The paper argues that robotic expression puts into  bold relief the view that much First Amendment speech is protected because of the experience of a user or receiver. The paper builds on, or moves beyond, or takes issue with the works of robotic free speech scholars Jane Bambauer, James Grimmelmann, Timothy Wu, and Eugene Volokh, among others. The paper began as an outgrowth of a series of conversations with Professor Ryan Calo, whose support and encouragement have been invaluable in developing our ideas in this new and largely uncharted area.

→ “Intentionless Free Speech” is the latest installment of the authors’ ongoing examination of the relationship between law and technology. This venture began with a 1990 article entitled “The First Amendment in an Age of Paratroopers,” and then continued with a 1992 article entitled “Paratexts” (expanded and reconstituted in “Paratexts as Praxis” in 2010), and ultimately developed into a book entitled The Death of Discourse (1996 & 2nd ed., 2005).

Headline: “NYC Censorship Event Gets Censored” — Another Mohammed Controversy 

According to a May 19th news report filed by Blake Neff writing in The Daily Caller: “A New York City arts center has canceled a planned event intended to protest censorship after one of the scheduled plays, Mohammed’ Gets A Boner, was deemed too offensive to Muslims. ‘Playwrights for a Cause’ was scheduled to be held at the Sheen Center for Thought and Culture on June 14, and was supposed to feature four short plays about censorship in art. In addition, revenue from the event was supposed to benefit the National Coalition Against Censorship.”

“Instead, the entire event has been canceled, thanks to one of the four entries. “‘Mohammed’ Gets A Boner” is a one-man performance by screenwriter Neil LaBute written specifically for the event. Its description makes it clear the play is intended to be somewhat shocking . . .”

“Not only is the play being canceled, but some media entities have been afraid to even name the play. The New York Times, which first reported the story, calls it ‘a new play … with a title making reference to ‘Mohammed.'”

Sheen Center Executive Director William Spencer Reilly defended their decision, saying that the venue “will not be a forum that mocks or satirizes another faith group.” (Source here)

* * * * 

“It’s hard to imagine a more ironic outcome: a venue attempts to alter, edit and censor the works that are being performed at an anti-censorship event,” said NCAC Executive Director Joan Bertin. “And when the artists won’t compromise their vision, the venue cancels the show.” (Source here)

4th Circuit Rules Against NAACP in Trademark Case with First Amendment Overtones

In  Radiance Foundation v. NAACP (4th Cir., May 19, 2015) a three-judge panel was called upon to decide a case that seemed to pit trademark rights against free-speech rights. “The Radiance Foundation,” wrote Judge J. Harvie Wilkinson, “published an article online entitled ‘NAACP: National Association for the Abortion of Colored People’ that criticized the NAACP’s stance on abortion. In response to a cease-and-desist letter from the NAACP, Radiance sought a declaratory judgment that it had not infringed any NAACP trademarks. The NAACP then filed counterclaims alleging trademark infringement and dilution.”

Judge Harvie Wilkinson (copyright: NYT)

In rejecting the NAACP’s trademark claim, Judge Wilkinson maintained that “[p]olitical discourse is the grist of the mill in the marketplace of ideas. It may be that the only — but also the best — remedy available to a trademark holder is to engage in responsive speech. For even where a speaker lies, ‘more accurate information will normally counteract the lie.’ [citation] The NAACP is a renowned civil rights organization with numerous mechanisms for connecting with its membership and the public. Organizations of its size and stature possess megaphones all their own. ‘Actual confusion’ as to a non- profit’s mission, tenets, and beliefs is commonplace, but that does not transform the Lanham Act into an instrument for chilling or silencing the speech of those who disagree with or misunderstand a mark holder’s positions or views.”

In striking the balance that he did, in a case not involving any commercial purpose, Judge Wilkinson also stressed: “We need not go so far as to say that social commentary solicitations can never be the subject of a valid infringement claim in order to conclude that it will not be infringing so long as the use of the mark does not create confusion as to source, sponsorship, or affiliation. Any other holding would severely restrict all kinds of speakers from criticizing all manner of corporate positions and activities and propel the Lanham Act into treacherous constitutional terrain.”

→ Audio of oral arguments in the Fourth Circuit here.

→ Charles Manley Allen successfully argued the case for the Appellants (appellate brief here)

→ Eugene Volokh, the First Amendment Amicus Brief Clinic and Mairead Dolan (UCLA Law Student) filed an amicus brief for the Electronic Frontier Foundation and thenACLU of Virginia in support of the Appellants.

9th Circuit: Actress Cindy Lee has no Copyright Interest in Innocence of Muslims

This from the Electronic Frontier Foundation: “Quick background: The video in question, called Innocence of Muslims, is an anti-Islam polemic that sparked outrage around the world. Actress Cindy Lee Garcia—who was tricked into appearing on-screen, overdubbed, for five seconds—sued Google to have the footage removed. The district court refused and Garcia appealed. The Ninth Circuit concluded Garcia’s copyright claim was ‘doubtful’ but nonetheless ordered Google to remove the film from YouTube and take steps to prevent future uploads.” When the case was presented to the 9th Circuit sitting en banc, it reversed: 10-1 with Judge Paul Watford concurring in the judgment and Judge Alex Kozinski dissenting.

→ The case: Garcia v. Google, Inc. (9th Cir., May 18, 2015) (per Judge M. Margaret McKeown)

Judge Margaret McKeown

This is how Judge McKeown began her opinion: “In this case, a heartfelt plea for personal protection is juxtaposed with the limits of copyright law and fundamental principles of free speech. The appeal teaches a simple lesson—a weak copyright claim cannot justify censorship in the guise of authorship.By all accounts, Cindy Lee Garcia was bamboozled when a movie producer transformed her five-second acting performance into part of a blasphemous video proclamation against the Prophet Mohammed. The producer—now in jail on unrelated matters—uploaded a trailer of the film, Innocence of Muslims, to YouTube. Millions of viewers soon watched it online, according to Garcia. News outlets credited the film as a source of violence in the Middle East. Garcia received death threats.”

Her opinion ends on this point: “Although the intersection between copyright and the First Amendment is much-debated, the Supreme Court teaches that copyright is not ‘categorically immune from challenges under the First Amendment.’ [citation omitted]. To be sure, this is not a case of garden-variety copyright infringement, such as seeking to restrain the use of copyrighted computer code. The panel’s takedown order of a film of substantial interest to the public is a classic prior restraint of speech. Prior restraints pose the ‘most serious and the least tolerable infringement on First Amendment rights,’ [citation omitted], and Garcia cannot overcome the historical and heavy presumption against such restraints with a thin copyright claim in a five-second performance.”

Judge Alex Kozinski

Writing in dissent, Judge Kozinski saw the case quite differently: “Garcia’s dramatic performance met all of the requirements for copyright protection: It was copyrightable subject matter, it was copyrightable subject matter, it was original and it was fixed at the moment it was recorded. So what happened to the copyright? At times, the majority says that Garcia’s performance was not copyrightable at all. And at other times, it seems to say that Garcia just didn’t do enough to gain a copyright in the scene. Either way, the majority is wrong and makes a total mess of copyright law, right here in the Hollywood Circuit. In its haste to take internet service providers off the hook for infringement, the court today robs performers and other creative talent of rights Congress gave them. I won’t be a party to it.”

→ Counsel for Defendants-Appellees Google & YouTube: Neal Katyal, Christopher T. Handman, Dominic F. Perella, Sean Marotta, Timothy Alger and Sunita Bali.

→ List of 22 amicus briefs available here

→ 2014 three-judge panel ruling with opinion per Chief Judge Kozinski available here

See also:

• Julia Greenberg, “New Ruling Is a Stark Reminder That Your Image Isn’t Yours,” Wired, May 19, 2015
• Corynne McSherry, “Finally! Victory for Free Speech in Garcia v. Google,” Electronic Frontier Foundation, May 18, 2015 (see EFF/ACLU amicus brief supporting Defendants-Appelees here)

Dissing the Police on Facebook — Protected Speech?

Scott Boyler

According to a story in the Buffalo News: “Scott Boyler is a Town of Evans resident who, for nearly two years, has posted a Facebook page and website called ‘Lackawanna police corruption.’ Needless to say, this has not gone over well with the cops. They went so far as to arrest and charge him with posting ‘annoying and alarming comments’ about them.”

“Boyler says his now very public fight with the Lackawanna police – he recently filed a federal court lawsuit against the city – is all about free speech and social media. [He is seeking $1.25 million in damages.] The police say it’s really about the offensive and threatening nature of what Boyler puts on his website and Facebook page.”

“. . . On his website, Boyler uses words like ‘pigface’ and ‘pig gang’ to describe the Lackawanna police. In one post, he suggests that a ‘known sociopath, compulsive liar and kleptomaniac’ is on the force and making false arrests, filing false charges and violating people’s civil rights.”

→ Mr. Boyler’s lawyer is James Ostrowski

→ Source: Phil Fairbanks, “Ugly posts on Facebook aimed at Lackawanna Police raise First Amendment questions,” Buffalo News, May 16, 2015 (check out the entire story as there is more too it).

Mauro Interviews Burt Neuborne — Williams-Yulee seen as possible “pivoting case” 

Professor Burt Neuborne

Recently, veteran Supreme Court reporter Tony Mauro interviewed Professor Burt Neuborne in connection with Neuborne’s new book Madison’s Music: On Reading the First Amendment (N.Y.U. Press, 2015). In the course of his National Law Journal interview, Mauro observed: “For the first time in years, New York University Law School professor Burt Neuborne thinks he heard some faint notes of James Madison’s ‘music’ in a First Amendment opinion of the U.S. Supreme Court.” The reference was to the Court’s recent 5-4 ruling in Williams-Yulee v. Florida State Bar. 

Even so, the professor’s “praise” was short lived: “The conservative wing of the Supreme Court has turned the free speech clause into a massive de-regulatory engine,” Neuborne said. “That is why they find it so compatible with their views. The First Amendment gives them a wonderful entrée into a large and important area where they can indulge in de-regulatory philosophy.”

Then again, Neuborne did detect some light (if only flickering) at the end of the conservative tunnel: “If it forces us back into recognizing the relationship between the First Amendment and campaign financing as being something that requires us to ask, ‘what kind of a system do we want to come out of the other end of the tunnel?,” Neuborne stressed, “then Williams-Yulee will be a very important case. It will be seen as a pivoting case.”

→ Forthcoming on this blog: “Neuborne Unplugged: A Q & A with Burt Neuborne About His Latest Book”

Campus Free-Speech Watch

1. Chris Galvan, “Free speech policy on hold at Cal Poly,” The Poly Post, May 19, 2015
2. John A. Tures, “‘Free Speech for Me but Not for Thee’ These Days,” Huffington Post, May 19, 2015
3. Kathleen Parker, “Restoring Free Speech on Campuses,” The TimesNews.com, May 19, 2015
4. Matt Welch, “Mitch Daniels Wasn’t Kidding About Free Speech on Campus,” Reason.com, May 19, 2015
5. “Ian McEwan to Grads: Defend Free Speech,” Time, May 18, 2015
6. Mark Keierleber, “First Amendment lawsuit says student was punished for wearing a T-shirt advocating gun rights,” Student Press Law Center (May 15, 2015)
7. Erin Jordan, “Eastern Iowa student journalists file First Amendment suit,” The Gazette, May 15, 2015

Forthcoming Books

1. Ann Larabee, The Wrong Hands: Popular Weapons Manuals and Their Historic Challenges to a Democratic Society (Oxford University Press, July 15, 2015)
2. Helena Carrapico & Benjamin Farrand, editors, The Governance of Online Expression in a Networked World Routledge (Routledge, July 20, 2015)
3. Nicole Moore, editor, Censorship and the Limits of the Literary: A Global View (Bloomsbury Academic, August 27, 2015)
4. Pat Scales, Books under Fire: A Hit List of Banned and Challenged Children’s Books (American Library Association Editions, September 1, 2015)
5. Robert Justin Goldstein & Andrew Nedd, editors, Political Censorship of the Visual Arts in Nineteenth-Century Europe: Arresting Images (Palgrave Macmillan, September 2, 2015)

New & Forthcoming Scholarly Articles

1. Aziza Ahmed, ” Informed Decision Making and Abortion: Crisis Pregnancy Centers, Informed Consent, and the First Amendment,” Journal of Law, Medicine and Ethics (2015)
2. Ronald J. Krotoszynski Jr., “Reconciling Privacy and Speech in the Era of Big Data: A Comparative Legal Analysis,” William & Mary Law Review (2015)
3. Yasmin Dawood, “Campaign Finance and American Democracy,” Annual Review of Political Science (2015)
4. RonNell Anderson Jones, “The Dangers of Press Clause Dicta,” Georgia Law Review (2014)

New YouTube Posts

1. “Debate: Does the First Amendment Protect Donor Privacy?” Oklahoma Council of Public Affairs, (posted: May 19, 2015) (panel discussion with Marc J. Blitz, Andrew Spiropoulos, Rick Tepker & Trent England)
2. Greta Van Susteren, “Obama’s News Police: White House Pushes FCC to Install Newsroom Spies — Attack on First Amendment,” Fox News (posted: May 19, 2015)
3. “James O’Keefe Interviews Judith Miller, Ardent Defender of 1st Amendment,” Project Veritas (posted: May 15, 2015)

→ Flashback: “Frank Zappa Interview 1990 on Censorship” KPFK (posted May 19, 2015) (see also here and here)

Noteworthy Blog Post

• Eugene Volokh, “Licenses to exercise constitutional rights,” The Volokh Conspiracy, May 15, 2015

. . . Indeed, in one high-profile constitutional law area, licensing requirements are indeed forbidden: Most speakers don’t need to get licenses to speak, print, or e-mail.

But even under the First Amendment, the matter is more complicated. Parade organizers may be required to get permits. Ballot signature gatherers may be required to register with the government, and so may fundraisers for charitable causes, though such fundraising is constitutionally protected. . . . 

• Eugene Volokh, “First Amendment generally protects videorecording of police, and this right is ‘clearly established’,” Volokh Conspiracy, May 14, 2015 (re ruling in Higginbotham v. City of New York (S.D.N.Y. May 12, 2015))

News, Op-eds, Commentaries & Blog Posts

1. Mike Adams, “A Queer Alliance Against Free Speech,” TownHall.com, May 20, 2015
2. Howard Mintz, “Google, YouTube win First Amendment fight over anti-Muslim video,” San Jose Mercury News, May 19, 2015
3. Paul Avelar,  “Ban ‘Dark Money’ in Politics? Might as Well Burn the First Amendment,” Breitbart News, May 19, 2015
4. Heather Selis, “Left-Wing Pundit: Liberals Killing Free Speech,” CBN News, May 19, 2015
5.  William Murchison, “Rise Up for Free Speech,” The American Spectator, May 19, 2015
6. John Wellington Ennis, “How Doug Hughes Took Free Speech to New Heights,” Huffington Post, May 19, 2015
7. Ruthann Robson, “DC Circuit Holds No Clearly Established [4th or 1st Amendment] Right Not To Be Tasered,” Constitutional Law Prof blog, May 18, 2015 (“As to the First Amendment claim, the court quickly found that Lash did not show the officer had ‘retaliatory animus.'”)
8. Stepehen Amberg, “Protect 1st Amendment, criticize provocateurs,” MyUSA, May 17, 2015
9. Editorial, “Our View: First Amendment wasn’t meant to provide cover for hate,” Midland Reporter, May 17, 2015
10. Eugene Volokh, “The Free Press Clause as protecting all users of mass communications — responding to the redundancy objection,” The Volokh Conspiracy, May 15, 2015
11. “Civil Rights Groups Tell Gov. Pence: Don’t stifle free speech — Support for BDS is not Anti-Semitism,” Mondoweiss, May 14, 2015

THE COURT’S 2014-15 FREE EXPRESSION DOCKET

[last updated: 5-18-15]

Cases Decided 

1. Williams-Yulee v. The Florida Bar (argued: Jan. 20, 2015 / decided: April 29, 2015) (5-4 per Roberts)

Review Granted & Cases Argued

1. Elonis v. United States (argued on 12-1-14)
2. Williams-Yulee v. The Florida Bar (argued 1-20-15)
3. Reed v. Town of Gilbert (argued on 1-12-15)
4. Walker v. Texas Division, Sons of Confederate Veterans (argued 3-23-15)

Pending Petitions*

1. Berger v. American Civil Liberties Union of North Carolina (license plate case)
2. Thayer v. City of Worcester (last distributed for Conference of January 9, 2015)
3. Friedrichs v. California Teachers Association, et al. (4-27-15: The Court asked the Calif. AG to respond to the petition)
4. Central Radio Co., Inc. v. City of Norfolk (amicus brief by Eugene Volokh)
5. Center for Competitive Politics v. Harris (emergency application for injunction pending Cert.)

Review Denied*

1. O’Keefe v. Chisholm
2. King v. Christie
3. Apel v. United States 
4. Dariano v. Morgan Hill Unified School District
5. The Bronx Household of Faith v. Board of Education of the City of New York 
6. Arneson v. 281 Care Committee
7. Kagan v. City of New Orleans
8. ProtectMarriage.com-Yes on 8 v. Bowen
9. Clayton v. Niska
10. Pregnancy Care Center of New York v. City of New York 
11. City of Indianapolis, Indiana v. Annex Books, Inc.
12. Ashley Furniture Industries, Inc. v. United States 
13. Mehanna v. United States
14. Stop This Insanity Inc Employee Leadership Fund et al  v. Federal Election Commission
15. Vermont Right to Life Committee, et al v. Sorrell

* Though these lists are not comprehensive, I try to track as many cases as possible. If you know of a cert. petition that is not on these lists, kindly inform me and I will post it.   

LAST SCHEDULED FAN POST, #60: “Mohammed-Cartoon Controversy Continues — Liberals Divided”

NEXT SCHEDULED FAN POST, #62: Wednesday, May 27, 2015