The majority opinion written by Justice White . . . announced a new category of speech — “school sponsored” — and a new [and] highly deferential standard for evaluating censorship of that kind of speech. . . . Justice White had originally wanted to go even further in expanding school officials’ authority. A draft opinion he circulated among the Justices would have permitted censorship unless it was “wholly arbitrary . . . .” –– Catherine J. Ross, Lessons in Censorship (2015)
Many who follow free speech law probably think a student journalist’s rights begin and end with the Court’s ruling in Hazelwood v. Kuhlmeier (1988). In his majority opinion in Hazelwood ( the vote was 5-3), Justice Byron White declared that “educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.” Of course, by that judicial norm the power to censor was virtually unlimited.
But that is changing thanks to our brand of rights-enhancing federalism by which states can often recognize a greater measure of rights than those accorded under federal law.
Enter the New Voices campaign (FB page), a student-powered grassroots movement spearheaded by the Student Press Law Center. The campaign’s objective is to “give young people the legally protected right to gather information and share ideas about issues of public concern. To that end, the Center has worked “with advocates in law, education, journalism and civics to make schools and colleges more welcoming places for student voices.”
Jonathan Peters, How a new campaign is trying to strengthen the rights of student journalists, Columbia Journalism Review (Feb. 19, 2016)
“New Voices USA is a network of state-by-state campaigns to pass anti-censorship legislation that will grant extra protections to student journalists. The movement is inspired by the success in North Dakota, where in 2015, the state legislature unanimously passed a bill that ensures the free-speech rights of journalism students in public schools and colleges.”
Ten States Expand Student Press Rights (statutory rights)
- North Dakota (public colleges & high schools)
- Colorado
- Pennsylvania
- Iowa
- Kansas
- Arkansas
- California
- Oregon
- Maryland (public colleges & high schools)
- Illinois (public colleges & high schools)
“It’s anomalous that high school students in a number of states have greater statutory protection than college students. That is a product of the initial belief post-Hazelwood that the ruling could never realistically be applied at the collegiate level; the first wave of statutory fixes logically addressed itself only to K-12 schools. Little did anyone suspect that four circuits (so far) would embrace Hazelwood as applying at all levels of schooling, and so the succeeding generation has addressed that “rights gap.” — Frank LoMonte
Related
- Oregon (protection for public college students)
- California (protection private college students)
- New Jersey (pending legislation: public colleges & high schools)
→ Ryan Tarinelli, U.S. Sen. Heidi Heitkamp speaks on the Senate floor in support of student free speech, New Voices, March 11, 2016 (YouTube video here)
→ American Society of News Editors Resolution in Support of Legal Protection for Student Journalists and Advisers (2016)
→ Society of Professional Journalists: Resolution No. 4: In support of enhanced protections for student journalists (2015)
Is downloading hacked Clinton e-mails a crime?
The Wall Street Journal’s Jacob Gershman looked into the question in an Oct. 17, 2016 post. One the one hand, he reported that “[a]ccording to CNN’s Chris Cuomo, possessing the stolen John Podesta emails is a crime — unless you’re a member of the media. ‘Remember, it’s illegal to possess these stolen documents,” Mr. Cuomo said on air. “It’s different for the media, so everything you learn about this, you’re learning from us.'”
On the other hand, and as pointed out in Gershman’s blog post, experts disagreed: “‘It’s highly unlikely—I would say unimaginable– that the simple downloading of documents made public by WikiLeaks is criminal,” [said] Floyd Abrams . . . . ‘I don’t know of any case that so holds or statute that requires such a result.'”
“UCLA law professor Eugene Volokh is also highly skeptical of CNN’s assertion. ‘It is illegal for the media or anyone else to possess actually stolen tangible property (e.g., stolen paper letters, stolen paper files, etc.) But possessing illegally made copies (again, when you weren’t involved in the illegal copying) isn’t illegal, and likely can’t be made illegal consistently with the First Amendment.'”
→ See also Jonathan Turley, CNN: It Is Illegal For Voters To Possess Wikileaks Material, Jonathan Turley blog, Oct. 17, 2017 (“While technical arguments could be made that downloading is a form of possession of stolen documents, it is a dubious argument when the material is widely distributed and a matter of public interest. The weight of the existing case law militates heavily against the legal threat described on CNN”)
Headline: “House passes bill making it illegal to sue for bad online reviews”
Writing in The American Genius, Gary Picariello reports that the “U.S. House of Representatives finally passed a bill that will make it illegal for companies to put ‘gag clauses’ in their contracts that block or penalize customers for posting negative online reviews. It’s expected to move through the Senate soon. . . . This bill. . . is a bipartisan piece of legislation that will void any existing non-disparagement clauses in consumer contracts and give the Federal Trade Commission and state attorneys general the authority to take enforcement action against businesses that attempt to use ‘non-disparagement’ clauses to quiet consumers. . . . [S]eeing as how the Senate already passed a version of the same bill last year, all that’s left really is ironing out the small print in order to combine the two versions before pushing forward for the President to sign.”
→ This bill is titled the Consumer Review Fairness Act
[ht: David Horowitz]
PEN America Report: “And Campus for All: Diversity, Inclusion, & Freedom of Spech at U.S. Universities”
As noted by Nennifer Schuessler in the New York Times,, a new report by PEN America, to be released on Monday, questions that story line while warning of a different danger: a growing perception among young people that cries of ‘free speech’ are too often used as a cudgel against them.The report, titled “And Campus for All: Diversity, Inclusion and Freedom of Speech at U.S. Universities,” covers a broad range of hot-button topics, including trigger warnings, microaggressions, safe spaces and controversial campus speakers. While it cites ‘troubling incidents of speech curtailed,”’ it finds no ‘pervasive” crisis.'”
“But it does worry about an ‘apparent chasm’ between free speech advocates and student activists, thanks in part to a conversation that sometimes dismisses students’ demands for equity and inclusion instead of parsing how they do, or don’t, infringe on the ‘bedrock principles’ of free speech.”
“‘A rising generation may be turning against free speech,’ the report warns. ‘Before these developments deepen and harden, PEN America hopes to open up a wider, more searching dialogue that can help all sides to these debates better identify common ground.’ . . .”
“Safe Space: A tool for allowing deep & consensual dialogue”
Yes, you read it right. You can learn more about safe speech by going to the Berkeley Student Cooperative’s website. Some of the information set out there includes:
- The “4 Principles of a Safe Space”
- “Things That Make Us Feel Safe/Unsafe”
- “Facilitation Games”
- “Icebreaker/Name Games”
- “Trust Building”
- “Conscious Learning Games”
[ht: Joan Bertin]
TJ Center’s “Free Speech on Campus” Symposium Video Posted
On October 13–14, 2016, the University of Virginia School of Law hosted the third biennial Jefferson Symposium. The Thomas Jefferson Center for the Protection of Free Expression event is now available in video format.
Among the speakers appearing at this year’s symposium are university presidents (Teresa Sullivan, University of Virginia, Jeffrey Herbst, Colgate University, Edward Ayers, University of Richmond), First Amendment experts (Geoffrey Stone, Eugene Volokh, and Leslie Kendrick), and humorists (including Kelly Carlin, George Carlin’s daughter), as well as advocates for restraints on hurtful or hostile speech.
Videos are now available of the following four panels:
- Free Speech In and Out of the Classroom
- Free Speech and Equal Dignity
- Free Speech in the Modern University
- Free Speech vs Hostile Environment
Free Speech on College Campuses
→ Peter Salovey, Yale Believes In Free Speech—and So Do I, Wall Street Journal, Oct. 17, 2016 (Professor Salovey is the President of Yale University)
- Aleister, Transgender Activists Disrupt Free Speech Rally at U. Toronto, Legal Insurrection, Oct. 18, 2016 (YouTube video here)
- Lili Carneglia, Keep fighting anti-free speech activism, The Crimson White, Oct. 17, 2016
- Anthony Gockowski, Trump appeals to millennials, vows to defend free speech on campus, Campus Reform, Oct. 14, 2016
- Cliff Maloney, Colleges Have No Right to Limit Students’ Free Speech, Time, Oct. 13, 2016
- Editorial, Free Speech Under Threat on Campuses, The News & Advance, Oct. 13, 2016
- Hans von Spakovsky, The All-Out Assault on the First Amendment, The Daily Signal, Oct. 12, 2016
FIRE Receives $2.5 Million Grant to Launch SOAR, Announces 9 New Job Openings
This from a FIRE press release: The Foundation for Individual Rights in Education (FIRE) is excited to announce the launch of its new Speech, Outreach, Advocacy, and Research (SOAR) project. Made possible by a $2.5 million grant from the John Templeton Foundation, this ambitious three-year project will provide FIRE with the tools necessary to conduct polling on campus attitudes, engage in legal and social science research, and mobilize a wider audience on and off campus in the fight for student and faculty rights.
“FIRE is grateful to the Templeton Foundation for its generous investment in the fight to defeat censorship and preserve academic freedom on campus,” said FIRE President and CEO Greg Lukianoff. “The grant will give FIRE tremendous resources to engage a wider audience and better understand the current attitudes and arguments about campus rights. FIRE has been eager to pursue a project like this since our founding in 1999. The Templeton Foundation has now made it a reality.”
Businessman and philanthropist Sir John Templeton gave his foundation the motto “how little we know, how eager to learn” to exemplify its support for open-minded inquiry and the hope for advancing human progress through breakthrough discoveries. The Templeton Foundation supports research on subjects ranging from complexity, evolution, and infinity to creativity, forgiveness, love, and free will. It encourages civil, informed dialogue among scientists, philosophers, and theologians, and between such experts and the public at large, for the purposes of definitional clarity and new insights.
“We are delighted to support FIRE’s efforts to help promote understanding of America’s unique constitutional and cultural commitments to free and open speech, including uncensored debate on even the most controversial topics,” said Daniel Austin Green, director of individual freedom and free markets at the Templeton Foundation.
With today’s announcement of SOAR, FIRE is also opening the job application process for nine new positions. FIRE is seeking energetic applicants who are entrepreneurial and passionate about its mission to fill the following positions by January 3, 2017:
- Director of Public Outreach
- Polling Analyst
- Psychology Research Fellow
- History Research Fellow
- Archival Fellow
- High School Outreach Fellow
- Alumni and Public Outreach Fellow
- Faculty Outreach Fellow
- Communications Coordinator
“FIRE’s team is composed of some of the most thoughtful, principled, and driven people working to defend and sustain civil rights today,” said FIRE Executive Director Robert Shibley. “With the launch of SOAR, we get to expand our already elite team to explore new issue areas and bolster our ongoing fight to protect campus rights.”
The Foundation for Individual Rights in Education (FIRE) is a nonpartisan, nonprofit organization dedicated to defending liberty, freedom of speech, due process, academic freedom, legal equality, and freedom of conscience on America’s college campuses.
→ Contact: Nico Perrino, Director of Communications, FIRE: 215-717-3473; media@thefire.org
Forthcoming book on Roberts Court & free speech
- Gregory P. Magarian, Managed Speech: The Roberts Court’s First Amendment (Oxford University Press, April 10, 2017)
Professor Gregory Magarian
Abstract: “This book comprehensively explores and critiques how the current U.S. Supreme Court, under the leadership of Chief Justice John Roberts, has reshaped First Amendment law. It argues that this Court has consistently used First Amendment law to promote a limited view of freedom, while bolstering social and political stability. This book examines every decision about expressive freedom the Supreme Court handed down between Chief Justice Roberts’ ascent in September 2005 and Justice Scalia’s death in February 2016. During Chief Justice Roberts’ tenure, the Court has issued more than forty decisions that interpret the First Amendment’s speech protections. These decisions comprise one of the most important parts of this Court’s record and legacy while inspiring sharply divergent judgments. The author explores many of the key recurring debates in First Amendment law as well as providing much needed attention on the special problems of the government preserve cases and the high stakes of the electoral process cases.”
New & Forthcoming Scholarly Articles
- Elizabeth Shaver, A Missed Opportunity to Clarify Students’ First Amendment Rights in the Digital Age, Brooklyn Law Review (forthcoming 2017)
- Nancy Leong, The First Amendment and Fair Housing in the Sharing Economy, Ohio State Law Journal (forthcoming 2016-17)
- Marc Rohr, First Amendment Fora Revisited: How Many Categories Are There?, SSRN (Oct. 10, 2016)
- Benjamin Akins, State of Confusion: A Non-Profit’s Right to Withhold Information from State Regulators, SSRN (Oct. 12, 2016)
- Allison June Luzwick, Human Trafficking and Pornography: Familiar Bedfellows — Using the Trafficking Victims Protection Act to Prosecute Trafficking for the Production of Internet Pornography, SSRN (Sept. 29, 2017)
- Ruben J. Garcia, Politics at Work After Citizens United, Loyola LA Law Review (2016)
New & Notable Blog Posts
- Ruthann Robson, Ninth Circuit Upholds California’s Disclosure Statute Regulating Crisis Pregnancy Centers, Constitutional Law Prof. Blog, Oct. 14, 2016
- Erica Goldberg, Policing Clowns on Campus: What Is and Is Not Constitutional (and what is murky), In a Crowded Theater, In a Crowded Theater, Oct. 6, 2016
Podcast
- National Constitutional Center, The First Amendment and the freedom of expression (Erwin Chemerinsky & Bradley Smith)
News, Editorials, Op-eds & Blog Posts
→ John Nichols, North Dakota’s War on the First Amendment Threatens Everyone’s Right to Know, The Nation, Oct. 18, 2016 (“Charges against Amy Goodman were rejected. But warrants and arrests continue to threaten dissenters, observers, journalists–and honest debate”)
→ Shaun Courtney, Can the next president rewrite the First Amendment?, Investigative Reporting Workshop, Oct. 17, 2016 (panelists included:Kenneth Jost, Anita Kumar, Adam Liptak, Katie Townsend, and Chuck Tobin (moderator))
→ Mi-Ai Parrish, How do we respond to threats after our endorsement? This is how, Az. Republic, Oct. 17, 2017
- Zoe Tillman, In Melania Trump Suit, Journalist Invokes Maryland’s Anti-SLAPP Law, Law.com, Oct. 18, 2016
- Wen Fa, High Court Is Asked to Defend First Amendment Rights Against Public Sector Retaliation, TownHall, Oct. 18, 2016
- Georgianne Nienaber, First Amendment and Sioux Nation Under Siege, Huffington Post, Oct. 16, 2016
- Brain Stelter, Donald Trump has ‘betrayed First Amendment values,’ journalism advocates say, CNN Money, Oct. 13, 2016
- Kathy Kiely, Trump’s Threat to the First Amendment, Moyers & Co., Oct. 13, 2016
- Barton Hinkle, Does the First Amendment Cover Books, Movies or Netflix?, Reason.com, Oct. 10, 2016
- Editorial, Remove muzzle on consumers, App.com, Oct. 2, 2016
- Lyle Denniston, Court to take a varied look at the First Amendment, Constitution Daily, Sept. 29, 2016
The Court’s 2016-2017 First Amendment Free Expression Docket
Cert. Granted
Pending Petitions*
- Bennie v. Munn
- Augsburg Confession
- Bondi v. Dana’s Railroad Supply
- Flytenow v. Federal Aviation Administration
- Packingham v. North Carolina
Cert. Denied
- Armstrong v. Thompson
- Wolfson v. Concannon
- Dart v. Backpage.com
- NCAA v. O’Bannon
- Mech v. School Board of Palm Beach County
- Williams v. Coalition for Secular Government
- Pro-Football v. Blackhorse
Free Speech Related Cases
- Doe v. Backpage.com LLC (Whether Section 230 of the Communications Decency Act, which provides that no internet service provider “shall be treated as the publisher or speaker” of internet content that was “provided by another,” precludes a civil lawsuit against a website owner and operator based on its own criminal conduct any time online content created by a third party was part of the chain of causation leading to the plaintiff’s injuries.)
First Amendment Religious Expression Cases
- Pfeil v. St. Matthews Evangelical Lutheran Church of the Unaltered (Whether the First Amendment to the United States Constitution provides absolute immunity for defamatory statements made in a religious setting, even if the person defamed is not a member of the religious organization and even if the truth or falsity of the defamatory statement can be adjudicated without considering or interpreting religious doctrine — applicability of the ecclesiastical abstention doctrine)
- Melhorn v. Baltimore Washington Conference of United Methodist Church (Whether the ministerial exception of the First Amendment absolutely bars breach of contract and tortious conduct lawsuits in situations of illegal conduct or harm to third parties.)
→ The Court’s next Conference is on October 28, 2016
* 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, #127: Cert Petition Raises Question of Standard of Review in Retaliation Case for Calling the President a “Communist”
Next Scheduled FAN, #129: October 26, 2016