[F]or those who believe that the Speech Clause has meaning beyond its strategic use, the application of the speech right must have limits. In other words, the outward creep of the speech doctrine’s boundaries need not be tolerated as “freedom for the [speech] that we hate.” — Morgan N. Weiland
I regard [the campaign finance issue] as the biggest liberal blindspot in First Amendment struggles in my entire career at the ACLU. –– Ira Glasser
∇ ∇ ∇ ∇
Morgan Weiland
“Expanding the Periphery and Threatening the Core: The Ascendant Libertarian Speech Tradition” is the title of a forthcoming article in the Stanford Law Review.
The author is Morgan N. Weiland, an attorney and PhD candidate at Stanford University specializing in speech, press, and technology law and ethics. Next year she will clerk for Ninth Circuit Judge M. Margaret McKeown. Here is how Ms. Weiland begins the abstract to her forthcoming article:
“Though scholars have identified the expanding scope of First Amendment speech doctrine, little attention has been paid to the theoretical transformation happening inside the doctrine that has accompanied its outward creep. Taking up this overlooked perspective, this Article uncovers a new speech theory: the libertarian tradition. This new tradition both is generative of the doctrine’s expansion and risks undermining the First Amendment’s theoretical foundations.”
“This Article excavates the libertarian tradition through an analysis of Supreme Court cases that, beginning in the 1970s, consistently expanded speech protections by striking down limits on commercial speech and corporate political spending. The Court justified this expansion with the rationale of vindicating listeners’ rights in the free flow of information—the corporate benefit was incidental. But by narrowly conceptualizing listeners as individuals whose interests are aligned with corporate speech interests, the Court ended up instrumentalizing listeners’ rights in the service of corporate speech rights. This is the libertarian tradition. Today, the tradition has abandoned listeners’ rights altogether, directly embracing corporate speech rights. . . .”
As Ms. Weiland sees it, the “libertarian tradition” threatens two longstanding free-speech theories: “the republican and liberal tradition.” Against that conceptual backdrop, she adds:
“First, by reconceptualizing listeners as individuals whose interests are vindicated through deregulation, the libertarian tradition draws from and is hostile to the republican tradition, which emphasizes the rights of the public, figured as listeners. Second, because the libertarian tradition focuses on vindicating corporate speech rights, it strips away the hallmarks of individual autonomy central to the liberal tradition, leaving only a naked speech right against the state, which this article names ‘thin autonomy.’ If the two traditions have value, then the libertarian tradition is problematic.
This insight cuts against the widespread belief that to protect speech we must be willing to countenance nearly any application of the right, even—and perhaps especially—if it goes against our most deeply held beliefs. That view is a myth; the speech right must have limits.”
Related
Weiland on Press Clause & Shield Legislation
“Weiland’s scholarship and policy work has also focused on the press clause and journalism. She is researching the doctrinal development of the press clause, a paper that was supported by Stanford’s Constitutional Law Center and presented at the Communication Department’s Rebele Symposium in April 2015.”
“Related to this research, Weiland has engaged extensively with the federal shield bill debate. She has spoken about the bill and its potential impact on journalism at AEJMC’s 2014 conference. Free Press, in a report titled “Acts of Journalism: Defining Press Freedom in the Digital Age,” notes that “[j]ournalism and First Amendment scholar Morgan Weiland has argued that lawmakers should simply drop the definition of ‘covered persons’ in both the House and Senate bills and rely instead on the House definition of journalism.” She advanced these arguments while working as a legal intern at the Electronic Frontier Foundation in 2013, where she critiqued and helped to change the legislation. Her work on congressional shield legislation is also featured in the Stanford Lawyer.” [Source here]
Podcast: Interview with former ACLU Executive Director Ira Glasser
[F]or me the First Amendment and all those always was a strategic argument. I regarded the First Amendment, not as a highfalutin doctrine of principle, but as an insurance policy, and that’s what it was meant to be. . . .— Ira Glasser
Ira Glasser
Over at FIRE’s So to Speak podcast series Nico Perrino interviews one the ACLU’s giants, Ira Glasser (transcript here).
In this wide-ranging and spirited interview, the liberal Glasser speaks about everything from
- his teaching math at Queens and Sarah Lawrence Colleges,
- to the people who inspired him (e.g., Murray Kempton, I.F. Stone and Max Lerner),
- to his admiration for Jackie Robinson,
- to his early days in 1967 at the NYCLU with Aryeh Neier (Glasser is not a lawyer),
- to his understanding of how real political change comes about,
- to his presence at March on Washington in 1963 when he was 25 (“I’d never seen anything like that in my life before, or since”)
- to his activism during the Nixon years
- to his views on the ACLU’s involvement in the Skokie case (“It was a surprise to us that it got so controversial”)
- to his historical discussion of Buckley v. Valeo and how of campaign-finace laws were tapped to go after liberals,
- to his views on progressives’ call to amend the First Amendment in order to overrule Citizens United (“You are handing your enemies the tools to suppress you!”)
- to his reply to Perrino’s last question: “What are you most proud of?” — Glasser: “There are two answers: One answer is substantive, and one answer is organizational . . . .” [You’ll have to listen to the podcast or read the transcript to hear the rest of Glasser’s answer.]
Related
- See also Ira Glasser on Firing Line with William F. Buckley (YouTube)
- Ira Glasser, Visions of Liberty: The Bill of Rights for All Americans (1993)
[B]ack in 1972, the ACLU, which by the way is . . . a corporation, was prevented from taking out an ad in The New York Times criticizing then-President Nixon for his opposition to school busing for integration, and had to go to court to vindicate its right to free speech. — Ira Glasser (2011)
- Ira Glasser, Understanding the Citizens United Ruling, Huffington Post, May 25, 2011
- Floyd Abrams, Ira Glasser & Joel Gora, The ACLU Approves Limits on Speech, Wall Street Journal, April 30, 2010 (“If that headline has a certain man bites dog quality, it’s because for almost 40 years the ACLU was the one major liberal organization that opposed campaign finance restrictions as violating the First Amendment.”)
- Ira Glasser, Standing Strong for Free Speech: A Response to Geoffrey Stone, Huffington Post, Sept. 12, 2014
From Stanford Law Review Online: Judge Neil M. Gorsuch on Free Expression
Brian Baran
Brian C. Baran & Nathaniel Rubin have just published an essay entitled Mainstream Jurisprudence and Some First Amendment Problems — Judge Neil M. Gorsuch on Free Expression. Here is an excerpt from the introduction to their essay:
Significant differences remain between Judge Gorsuch and Justice Scalia. Justice Scalia’s trademark originalism has barely registered in Judge Gorsuch’s free speech jurisprudence. Justice Scalia himself did not use originalism to resolve First Amendment questions as much as he might have. By one account, he used it only about 30% of the time. But that is still a lot of cases—and a lot more than Judge Gorsuch’s 0% .Moreover, a clear minimalist thread runs through Judge Gorsuch’s decisions, while Justice Scalia was not known for his minimalism.
Nathaniel Rubin
Ultimately, even though Judge Gorsuch’s First Amendment methodology may diverge from Justice Scalia’s, we conclude Judge Gorsuch is unlikely to work a sea change in this area of the Court’s jurisprudence.To understand Judge Gorsuch’s potential impact on free expression jurisprudence as a Justice, we must look first to his work in this area as a judge.
We begin in Part I with an overview of Judge Gorsuch’s published free expression opinions. In Part II, we examine Judge Gorsuch’s originalism and minimalism. In Part III, we look at Judge Gorsuch’s substantive vision for what types of expression the First Amendment protects. . . .
Their conclusion: Ultimately, we do not expect a potential Justice Gorsuch to advocate any major changes to the Court’s First Amendment freedom of expression jurisprudence. Methodologically, he cannot be called a “Scalia clone.” Perhaps most significantly, if you were hoping for a Justice who would “open up our libel laws,” Judge Gorsuch is not your man.
Montana’s Criminal Defamation Law Challenged
Robert Myers
“A new federal lawsuit involving a contentious Montana judicial race last year claims an investigation into campaign statements is having a chilling effect on one of the candidate’s ability to defend himself in disciplinary proceedings.”
“Robert Myers wants a federal judge to strike down Montana’s criminal defamation statute as unconstitutional. [Montana criminal defamation code here] He says doing so will not only prevent Myers from being “illegally prosecuted in a criminal proceeding,” but also may encourage other witnesses to come forward without fear that their testimony regarding possible misconduct by Ravalli County District Judge Jeffrey Langton will result in them being charged with criminal defamation.”
“The newest complaint, filed Thursday, comes almost a year after Myers sued Chief Disciplinary Counsel Shaun R. Thompson over alleged ethics violations included in civil disciplinary complaint against him. Myers said Montana’s disciplinary code, which prohibits attorneys from making false statements about judges, forces judicial candidates to forego exercising their fundamental right to criticize their opponents. A trial before U.S. District Court Judge Donald Molloy is set for Sept. 25 in Helena.”
→ ht: Rick Hasen @ Election Law Blog
Headline: “Supreme Court Protesters Plead Guilty to Misdemeanor Charges”
Unnamed protestors
This from Zoe Tillman at BuzzFeed: “Five people who disrupted proceedings at the US Supreme Court to protest the Citizens United decision pleaded guilty on Thursday to two misdemeanor charges, one month after losing a constitutional challenge to part of the case.The defendants face up to a year in prison. There was no plea deal, and the lawyers did not offer any hints about what they would seek at sentencing. A sentencing hearing is scheduled for July 24. . . . ”
“Prosecutors charged Kresling and the other protesters with violating laws against demonstrations and disruptions in and around the Supreme Court. The defendants challenged the constitutionality of one of the charges, which criminalized a ‘harangue,’ ‘oration,’ or loud language at the high court. A federal district judge agreed that “harangue” and “oration” were vague terms and struck that part of the charge. . . .”
→ Robert Barnes, Law restricting protests during high court proceedings is upheld, Washington Post, March 4, 2017
Justice Alito on Freedom of Speech
On February 11, 2017, Justice Samuel Alito received the Statesmanship Award and delivered the keynote speech at the Claremont Institute’s 2017 annual dinner in honor of Sir Winston S. Churchill. Here are a few excerpts from the Justice’s remarks:
Our constitutional system cannot survive unless citizens are allowed to speak freely on issues of public importance. Freedom of speech is not a prerogative of those in positions of power or influence. It is not the property of those who control the media. It is the birthright of all Americans.
But today, unfortunately, freedom of speech on important subjects is, I believe, in greater danger than at any prior time during my life. Powerful forces want to silence the opposition. Consider this: in the last Congress, 48 Senators sponsored a resolution proposing a constitutional amendment that would preserve the free speech rights of the media elite but allow Congress and the state legislatures to restrict the speech of everybody else on any subject that came up during the political campaign, which is to say, any important social or economic problem facing the country.
This is a startling development. The very idea of amending the First Amendment is quite something. And if this amendment were adopted, freedom of speech as we have known it would be transformed. In the East where I live, we sometimes keep a watch on the weather conditions here in the West, because we know that the jetstream blows from west to east. So if you’re being hit with a big storm here today, that storm may hit us a couple of days later.
→ ht: Rick Hasen @ Election Law Blog
FIRE to Host Summer Conference featuring Daryl Davis & Jeffrey Rosen
The Foundation for Individual Rights in Education (FIRE) recently announced its tenth annual FIRE Student Network Summer Conference. The event will take place from July 14-16, 2017, in Philadelphia; it will feature guest speakers Daryl Davis and Jeffrey Rosen.
“FIRE’s yearly conference is a weekend-long workshop designed to teach students about their rights on campus — and provide the tools to assert and defend them. Our conference brings together college students from around the country and across the ideological spectrum who share a passion for free speech and due process. Attendees will participate in dynamic, interactive workshops hosted by FIRE’s staff members where students will learn about the First Amendment, gain skills to protect and celebrate their civil liberties, and ideas for putting that new knowledge to work back on their campuses.”
“This year, students will also hear from two profoundly accomplished and unique keynote speakers:
Daryl Davis is a professional musician whose achievements embody the transcendent power of both friendship and free and open dialogue. A black man who has spent years befriending members of the Ku Klux Klan, Davis takes an intensely personal approach to showing Klan members that their prejudices are unfounded. His efforts have resulted in numerous Klansmen relinquishing their robes and leaving the group for good. Davis has received critical acclaim for his book “Klan-Destine Relationships: A Black Man’s Odyssey in the Ku Klux Klan” and is the recipient of numerous awards, including the Elliott-Black Award and the Bridge Builder Award, presented by the American Ethical Union and the Washington Ethical Society, respectively. His efforts have been profiled in The Washington Post and The Atlantic, as well as on CNN, NBC, Good Morning America, The Learning Channel, National Public Radio, and many others. Davis is the subject of a recently released PBS documentary entitled “Accidental Courtesy: Daryl Davis, Race & America,” and was recently featured on FIRE’s “So to Speak: The Free Speech Podcast.”
Jeffrey Rosen is president and CEO of the National Constitution Center, a George Washington University Law School professor, and a contributing editor at The Atlantic. Rosen is a graduate of Harvard College, Oxford University, and Yale Law School. His new book, “Louis D. Brandeis: American Prophet,” was published June 1, 2016, on the 100th anniversary of Brandeis’s Supreme Court confirmation. He’s also written extensively on constitutional issues surrounding the judicial system, the intersection of privacy and technology, and more. His essays and commentaries have appeared in The Atlantic, The New York Times Magazine, on National Public Radio, in the New Republic, where he was the legal affairs editor, and in The New Yorker, where he has been a staff writer. The Chicago Tribune named him one of the ten best magazine journalists in America, and the Los Angeles Times has dubbed him “the nation’s most widely read and influential legal commentator.”
“The conference will open with a reception on Friday and close with lunch on Sunday. While space is limited, the event is free to attend and open to current students at U.S. colleges and universities, including graduate students and incoming freshmen. Housing and meals will be provided, and a travel reimbursement for up to $300 per student will be available to help students travel to and from Philadelphia.”
→ For more information, go to: thefire.org/conference — apply here
First Amendment Advocate Judith Platt to Retire from AAP
Judy is irreplaceable. In addition to leading the AAP Freedom to Read Committee, she has been a key player in three free speech groups — the ALA Freedom to Read Foundation, Media Coalition, and the Free Expression Network. We will miss her fighting spirit and her wonderful humor, which lightened every crisis. –– Chris Finan (director, American Booksellers for Free Expression)
Judith Platt
She is the Director of Free Expression Advocacy for the Association of American Publishers. On June 30th Judith Platt will retire from AAP after almost 38 years (more than two decades of them directing the free expression work of the Association).
“A native of New York and a graduate of Queens College, Judith joined the staff of the Association of American Publishers in 1979. From 1986–2011 she was Director of Communications and Public Affairs and in 1996 also assumed the title of Director of Freedom to Read. Since 2011 she has been Director of Free Expression Advocacy, coordinating the work of the AAP Freedom to Read Committee, the publishing industry advisory body that serves as watchdog and advocate on issues pertaining to intellectual freedom and the First Amendment, and directing AAP’s international freedom to publish activities on behalf of publishers overseas who are subjected to political intimidation and denied free expression rights.” [Source: Freedom to Read Foundation]
Sophia Castillo
→ Judith Platt, First Amendment Under Siege, Huffington Post, March 18, 2010
→ Judith Platt Receives First Amendment Award from Freedom to Read Foundation, June 19, 2013
Judith Platt (April 15, 2010): “Burt Joseph was living proof that you can be passionate and principled in what you believe without becoming a zealot. His commitment to free expression never got in the way of his unfailing civility and courtesy, even to those with whom he disagreed.”
∇ ∇ ∇ ∇
→ Sophia Castillo will assume Platt’s responsibilities upon her retirement. Ms. Castillo joined AAP in 2015 as a staff attorney. She holds a Master’s degree from Stanford in Latin American Studies and a J.D. from American University. She spent three years at the Center for Justice and International Law, a DC-based human rights NGO before serving as a legal fellow at the Copyright Alliance and a law clerk at the U.S. Copyright Office.
President Trump & the First Amendment
- Neil Richards, Free Speech and the Twitter Presidency, University of Illinois Law Review Online (2017)
- RonNell Andersen Jones & Lisa Grow Sun, Making an Enemy of the Press, University of Illinois Law Review Online (2017)
- Susan E. Seager, Donald J. Trump Is A Libel Bully But Also A Libel Loser, Media Law Resource Center
- Jonathan Turley, A Showing of Actual malice: The White House “Tires” of the First Amendment, Jonathan Turley, May 4, 2017
- Trump Considering 1st Amendment Clampdown, The David Pakman Show, May 2, 2017 (YouTube)
- Michael Newcity, Donald Trump wants the First Amendment both ways, The Herald Sun, May 7, 2017
- Denis Smith, In Trump World, Wouldn’t It Be Great If The First Amendment Was As Important As The Second?, Plunderblund, May 8, 2017
New & Forthcoming Scholarly Articles
- Randy J. Kozel, Precedent and Speech, Michigan Law Review (2017)
- Leslie Gielow Jacobs, Making Sense of Secondary Effects Analysis after Reed v. Town of Gilbert, Santa Clara Law Review (forthcoming 2017)
- Christopher F. Edmunds, The ‘Tinker-Bell’ Framework: The Fifth Circuit Places Facebook inside the Schoolhouse Gate in Bell v. Itawamba County School Board, Tulane Law Review (forthcoming)
New & Notable Blog Posts
- Erica Goldberg, Partisans Versus Contrarians: The New York Times, The Harvard Business Review, and the Orwellian Distortion of the Free Speech Debate on College Campuses, In a Crowded Theater, May 8, 2017
- Ruthann Robson, Colbert, the FCC, and the First Amendment, Constitutional Law Prof Blog, May 7, 2017
New Blasphemy Cases (abroad)
- Eugene Volokh, Comedian Stephen Fry facing blasphemy investigation in Ireland, The Volokh Conspiracy, May 7, 2017
- Eugene Volokh, Blasphemy allegations in Pakistan and Bangladesh, The Volokh Conspiracy, May 3, 2017
Students’ Speech Rights
- Brian McVicar, Campus free speech bill would penalize students who ‘infringe’ on first amendment rights of others, Michigan Live, May 9, 2016
- Andy Ngo, Students protest gay conservative speaker as he defends free speech at Portland State, The College Fix, May 9, 2017
- Howard Fischer, Arizona House OKs free speech protections to student journalists, Tuson.com, May 8, 2017
- Derek Hawkins, Does the First Amendment protect ‘liking’ a racist Instagram post? Some Calif. students say it does, Washington Post, May 5, 2017
- Peter Bonilla, Marquette professor John McAdams vows appeal after setback in suit against university, FIRE, May 5, 2017
- Adam Goldstein, Newspaper confiscated, adviser suspended at Hutchinson Community College, FIRE, May 4, 2017
News, Editorials, Op-eds, Commentaries & Blog Posts
- Pittsburgh Post-Gazette Editorial, Beware legislation that chips away at free speech, Watertown Daily News, May 9, 2017
- Jeffrey Lord, A Washington press corps dinner lauds free speech — or did it?, The American Spectator, May 8, 2017
- Tonio Maglio, Writers Guild ‘Appalled’ at FCC Investigation of Stephen Colbert: ‘Willful Disregard of First Amendment’, The Wrap, May 8, 2017
- Janet Williams, Living the First Amendment is hard work, Statehouse File.com, May 8, 2017
- Jesse Singal, Are People Who Defend Free Speech More Racist Than Those Who Do Not?, Science of Us, May 8, 2017
- David Keene, Preserving free speech for all, Washington Times, May 8, 2017
- Erica Goldberg,, The FCC’s Investigation of Stephen Colbert Likely Violates The First Amendment, In a Crowded Theater, May 6, 2017
- Jo Mannies, Federal judge: Parts of Missouri’s campaign finance law unconstitutional; $2,600 donor limit stays, St. Louis Public Radio, May 5, 2017
YouTube: Two Knight First Amendment Institute Events
- Are First Amendment Values Under Siege?, Knight First Amendment Institute, posted May 4, 2017 (Participants, from left to right: Jamal Greene, Suzanne Nossel, Jeffrey Abramson, Leslie Kendrick, & Vince Blasi)
(from left to right: Zeynep Tufekci, Tim Wu & Beth Simone Noveck)
- Free Speech in the Networked World, Knight First Amendment Institute, posted May 4, 2017 (Participants: Alberto Ibarguen, Lincoln Caplan, Beth Simone Noveck, Tim Wu, & Zeynep Tufekci)
Rosen Interviews Abrams @ National Constitution Center
Jeffrey Rosen & Floyd Abrams
Floyd Abrams and the Soul of the First Amendment, Natioanl Constitution Center, May 8, 2017 (interviewed by Jeffrey Rosen)
Today in First Amendment History
May 10, 1970: “As part of the nationwide protests of the invasion of Cambodia that began on May 1, 1970, following President Richard Nixon’s expansion of the Vietnam War the day before, a college student hung an American flag upside down, with peace symbols attached. He was arrested and convicted under the State of Washington’s “improper use” clause of its flag statute law. The Supreme Court overturned his conviction, in Spence v. Washington.” [Source: Today in Civil Liberties History]
The Court’s 2016-2017 First Amendment Free Expression Docket
Opinions Rendered
- Expressions Hair Design v. Schneiderman (opinion here)
Cert. Granted
- Expressions Hair Design v. Schneiderman (transcript here)
- Lee v. Tam (transcript here)
- Packingham v. North Carolina (transcript here)
Pending Appeals & Petitions & Related Cases*
- Republican Party of Louisiana, et al. v. FEC
- Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission (SCOTUSblog commentary) (relisted after the February 24, March 3, March 17, March 24, March 31, April 13, April 21 and April 28 conferences)
- Mulligan v. Nichols
Summary Disposition
- Independence Institute v. FEC (affirmed)
Cert. Denied
- Alabama Democratic Conference v. Marshall
- Augsburg Confession
- Keefe v. Adams
- Scott v. Georgia
- Bondi v. Dana’s Railroad Supply
- Bennie v. Munn
- Flytenow v. Federal Aviation Administration
- 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
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 Cases: 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: Review 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)
Speech & Debate Clause: Pending
- Menendez v. United States (Whether a court may consider a legislator’s motive for performing an act when deciding whether the act is protected by the speech or debate clause).
Freedom of Information Act Petition: Pending
- Detroit Free Press, Inc. v. Department of Justice (Whether the Freedom of Information Act requires disclosure of booking photos of publicly named, federal indictees who have already appeared in open court.)
→ The Court’s next Conference is on May 11, 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, #152: May 17 2017
Last Scheduled FAN, # 150: Trend Ends: ACLU’s 2017 Action Plan Stands “Up for Free Speech”