FAN 138 (First Amendment News) Forthcoming book: “Unsafe Space: The Crisis of Free Speech on Campus”

A call to arms for studnets and academics who want to turn the tide on campus censorship — Nadine Strossen 

Tom Slater

Seattle. He is the  deputy editor at Spiked, a British Internet magazine focusing on politics, culture and society from a libertarian viewpoint. His name is Tom Slater and he is the editor of a forthcoming book entitled Unsafe Space: The Crisis of Free Speech on Campus (Palgrave Macmillan, May 25, 2016). Here you can see young Slater speaking with calculated fervor on British TV while attacking those who would censor campus speech.

Here is the publisher’s summary of the book consisting of ten essays:

The academy is in crisis. Students call for speakers to be banned, books to be slapped with trigger warnings and university to be a Safe Space, free of offensive words or upsetting ideas. But as tempting as it is to write off intolerant students as a generational blip, or a science experiment gone wrong, they’ve been getting their ideas from somewhere. Bringing together leading journalists, academics and agitators from the US and UK, Unsafe Space is a wake-up call. From the war on lad culture to the clampdown on climate sceptics, we need to resist all attempts to curtail free speech on campus. But society also needs to take a long, hard look at itself. Our inability to stick up for our founding, liberal values, to insist that the free exchange of ideas should always be a risky business, has eroded free speech from within.

→ To give the book added spark, in his introduction Slater (a Brit) draws his inspiration from the Berkley free-speech movement of 1964 when students rebelled against the “university bureaucrats who severely limited students’ ability to speak freely and organize politically on campus.”

↓ Below is the list of contributors (many from Spiked): ↓

Introduction, Tom Slater, Reinvigorating the Spirit of ’64

Chapter 1: Brendan O’Neill, From No Platform to Safe Space: A Crisis of Enlightenment

Chapter 2: Nancy McDermott, The ‘New’ Feminism and the Fear of Free Speech

Chapter 3: Tom Slater, Re-Educating Men: The War on Lads and Frats

Chapter 4: Joanna Williams, Teaching Students to Censor: How Academics Betrayed Free Speech

Chapter 5: Greg Lukianoff, Trigger Warnings: A Gun to the Head of Academia

Chapter 6: Sean Collins, BDS: Demonising Israel, Destroying Free Speech

Chapter 7: Jon O’Brien, Debating Abortion on Campus: Let Both the Pro and Anti Sides Speak

Chapter 8: Peter Wood, A Climate of Censorship: Eco-Orthodoxy on Campus

Chapter 9: Tom Slater, Terrorism and Free Speech: An Unholy Alliance of State and Students

Chapter 10: Frank Furedi, Academic Freedom: The Threat from Within

Conclusion: Tom Slater, How to Make Your University an Unsafe Space

If you’re really serious about challenging prejudice, censorsing bigots is the worst thing you can possibly do. . . . It effectively buries our heads in the sand. It stops us from locating those views, arguing against them, and then discrediting them in the public forum. Censorship makes these problems worse, not better. — Tom Slater

→ Lee v. Tam (the “Slants” case) to be argued today (see here re Washington Post interview with the bands’ members)

From SCOTUSblog: “Argument analysis: Merchants seem to fall short in challenge to New York statute banning credit-card ‘surcharges'”

Professor Ronald Mann

This from Professor Ronald Mann writing in SCOTUSblog: “The oral argument . . . in Expressions Hair Design v. Schneiderman brought the justices face to face with the battle between merchants and credit-card networks over the “interchange” fees that merchants pay when they accept cards in retail transactions. The dispute that got the fees before the justices involves a New York statute that says that ‘[n]o seller in any sales transaction may impose a surcharge on a holder who elects to use a credit card in lieu of payment by cash, check, or similar means.’ The petitioner, Expressions Hair Design (leader of the group of merchants challenging the provision), argues that the statute violates the First Amendment because it limits a merchant’s right to describe the extra costs imposed on purchasers using credit cards as ‘surcharges.'”

“For a case into which so many groups poured so much effort (23 amicus briefs), the argument must have been deeply frustrating, because the most prominent thing not on display was any strong inclination to address the case head-on. Three themes dominated the argument. The first was a considered refusal of the parties to join issue about what the statute actually means. Representing the merchants, Deepak Gupta insisted that the statute prevents merchants from posting separate cash and credit prices and that the state of New York has no justifiable reason to do so. Representing the state, Steven Wu insisted that the statute is aimed only at “bait-and-switch” pricing – when a retailer posts a single price but then asks for a higher price at the register for customers who pay with cards. . . .”

David Cole: “Donald Trump vs the First Amendment”

The ACLU’s David Cole

That is the title of a new piece just published in The Nation.  David Cole, the ACLU’s new National Legal Director, took First Amendment aim at President-elect Donald Trump. Here are a few excerpts:

“Donald Trump has no particular reverence for the First Amendment. He may not even understand it very well. During the campaign, Trump said he would “open up” libel law so that newspapers could more easily be sued. As president-elect, he tweeted that those who burn the American flag should be stripped of their citizenship and jailed. These threats are constitutional nonstarters. There is no federal libel law to “open up”: Libel is a matter of state law, and to the extent it is governed by federal law, it’s the First Amendment that governs. Similarly, the Supreme Court held in 1989 (in a case I litigated) that the First Amendment protects flag-burning and ruled in 1967 that citizenship is a constitutional right that cannot be taken away as punishment under any circumstances—not for murder, not for treason, and certainly not for flag-burning.”

“. . . The First Amendment itself serves a critical checking function, by safeguarding the rights of citizens to criticize government officials, to associate with like-minded citizens in collective action, and to petition the government for redress of grievances. It is this First Amendment tradition that protects the institutions we will rely on to push back against Trump’s abuses.”

“The press has its own express protection in the First Amendment, and it will play a critical role in bringing abuses to light and arming citizens with information and arguments. Think Watergate. The academy, protected by the doctrine of academic freedom, will also be essential—questioning Trump’s policies, providing empirical evidence to refute his assertions, and educating citizens about the value of our civil liberties and civil rights. And the nonprofit sector, including organizations such as Planned Parenthood, the NAACP Legal Defense Fund, the ACLU, the American Immigration Lawyers Association, 350.org, and the groups that comprise the Movement for Black Lives, will be a focal point for organizing, educating, litigating, and inspiring resistance. If we are saved, it will be thanks to actions by citizens exercising their First Amendment rights against Trump. . .”

Massaro, Norton & Kaminski on Artifical Intelligence and the First Amendment 

Professor Toni Massaro

The article is entitled Siri-ously 2.0: What Artificial Intelligence Reveals about the First Amendment. It is scheduled to be published in the Minnesota Law Review. The authors (three tech-savvy and free-speech- informed scholars) are Toni Massaro, Helen Norton, and Margot Kaminski. Here is the abstract from this cutting-edge article:

The First Amendment may protect speech by strong Artificial Intelligence (AI). In this Article, we support this provocative claim by expanding on earlier work, addressing significant concerns and challenges, and suggesting potential paths forward.

This is not a claim about the state of technology. Whether strong AI — as-yet-hypothetical machines that can actually think — will ever come to exist remains far from clear. It is instead a claim that discussing AI speech sheds light on key features of prevailing First Amendment doctrine and theory, including the surprising lack of humanness at its core.

Professor Margot Kaminski

Courts and commentators wrestling with free speech problems increasingly focus not on protecting speakers as speakers but instead on providing value to listeners and constraining the government’s power. These approaches to free speech law support the extension of First Amendment coverage to expression regardless of its nontraditional source or form. First Amendment thinking and practice thus have developed in a manner that permits extensions of coverage in ways that may seem exceedingly odd, counterintuitive, and perhaps even dangerous. This is not a feature of the new technologies, but of free speech law.

Professor Helen Norton

The possibility that the First Amendment covers speech by strong AI need not, however, rob the First Amendment of a human focus. Instead, it might encourage greater clarification of and emphasis on expression’s value to human listeners — and its potential harms — in First Amendment theory and doctrine. To contemplate — Siri-ously — the relationship between the First Amendment and AI speech invites critical analysis of the contours of current free speech law, as well as sharp thinking about free speech problems posed by the rise of AI.

→ Related & Forthcoming: Collins & Skover, Robotica: The Discourse of Data (Cambridge University Press, 2018).

Forthcoming Books

1. Tom Slater, editor, Unsafe Space: The Crisis of Free Speech on Campus (Palgrave Macmillan, May 25, 2016)
2. Milo Yiannopoulos, Dangerous (Threshold Editions, March 14, 2017)
3. Mickey Huff & Andy Lee Roth, editors, Censored 2018: The Top Censored Stories and Media Analysis of 2016-2017 (Seven Stories Press, October 3, 2017)
4. Jennifer Downey, Public Library Collections in the Balance: Censorship, Inclusivity, and Truth (Libraries Unlimited, June 30, 2017)

New Scholarly Article

• Samuel S. Sadeghi, Election Speech and Collateral Censorship at the Slightest Whiff of Legal Trouble, UCLA Law Review (2016)

News, Editorials, Op-eds & Blog Posts 

1. France Giddings & Kjersten Gmeiner, Milo Yiannopoulos: Free speech or hate speech?, Seattle Times, January 17, 2017
2. Frederick M. Hess, Lawmakers, stop enabling higher ed’s assault on free speech, The Hill, January 17, 2017
3. Christian Farias, Inaugural Parade Route For Donald Trump Doesn’t Violate First Amendment, Court Rules, Huffington Post, January 17, 2017
4. Mitchell Gunter, Following Harambe ban, Clemson RAs undergo mandatory free speech training, The College Fix, January 17, 2017
5. Jennifer Chambers, Lawsuit: Straight-ticket ban violates First Amendment, Detroit News, January 17, 2017
6. Alex Morely, Marquette’s McAdams Won’t Apologize, Remains Suspended, FIRE, January 17, 2017
7. Frank Garrison, Should Judges Defer to Legislatures on the First Amendment?, Cato at Liberty, January 16, 2017
8. Robert Shibley, Martin Luther King, Free Speech, and the Albany Movement, FIRE, January 16, 2017
9. Robert Barnes, Will Asian American band’s First Amendment argument resonate with Supreme Court?, Washington Post, January 15, 2017
10. Marcus Baram, How Fake News Reinforced My Faith In The First Amendment, FC, January 10, 2017

New Podcast 

•  Nico Perrino, Ken White of ‘Popehat’ Talks Nat Hentoff, Worst Censors of 2016, So to Speak (FIRE)

The Court’s 2016-2017 First Amendment Free Expression Docket

Cert. Granted

1.  Expressions Hair Design v. Schneiderman (oral argument: Jan. 10, 2017)(transcript here)
2. Lee v. Tam (oral argument: Jan. 18, 2017)
3. Packingham v. North Carolina (oral argument: Feb. 27. 2017)

Pending Appeals & Petitions & Related Cases*

1. Republican Party of Louisiana v. FEC
2. Independence Institute v. FEC
3. Augsburg Confession
4. Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission 
5. Bondi v. Dana’s Railroad Supply

Cert. Denied

1. Bennie v. Munn
2. Flytenow v. Federal Aviation Administration
3. Armstrong v. Thompson
4. Wolfson v. Concannon
5. Dart v. Backpage.com
6. NCAA v. O’Bannon
7. Mech v. School Board of Palm Beach County
8. Williams v. Coalition for Secular Government 
9. Pro-Football v. Blackhorse 
10. Scott v. Georgia (The Georgia Supreme Court upheld, in the face of a First Amendment overbreadth challenge, a statute that forbids otherwise-protected sexually related speech to minors if the speaker intends to arouse or satisfy someone’s sexual desire. The Texas Court of Criminal Appeals and the Ninth Circuit Court of Ap- peals have held such statutes unconstitutional.)

First Amendment Religious Expression Case: Cert. Denied

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.)

Free Speech Related Case: Review denied 

• 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 Case: Denied 

• 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)

→ The Court’s last Conference was on January 13, 2017. The next Conference is on January 19, 2017.

* 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.

Next Scheduled FAN, #139: January 25, 2017

Last Scheduled FAN, #137: Backpage.com removes adult content due to government censorship — vows to fight First Amendment battles