Prof. Stephen Solomon (credit: Sarah Solomon)
If you are interested in the First Amendment, be prepared to bookmark an invaluable new site: First Amendment Watch. This news, anlysis and history website is the brainchild of Stephen D. Solomon, New York University’s Marjorie Deane Professor at NYU’s Arthur L. Carter Journalism Institute, where he teaches First Amendment law.
→ Recall: Professor Solomon is the author of, among other works, Revolutionary Dissent: How the Founding Generation Created the Freedom of Speech (2016) (First Amendment Salon video here and news story re his speech at History Book Festival event here.)
→ Managing Editor: Tatiana Serafin has covered issues of press freedom for various publications, including her latest “I, Journalist” for The Seventh Wave. She was a staff writer at Forbes and then co-editor of the magazine’s billionaire’s list, initiating coverage of billionaires in Eastern Europe and Central Asia. She continues as a Forbes Contributor and is an Adjunct Professor at Marymount Manhattan College.
The mission of the site is to document threats to the First Amendment’s freedoms of speech, press, assembly, and petition. First Amendment Watch will highlight threats to the freedom of expression as they arise and provide continuing updates as news develops. The most important element is the deep dives into legal and historical background that provides the perspective that helps readers gain a full understanding of today’s First Amendment conflicts.
Social media also play an important role in getting news message out to the public. (See FAW’s Facebook and Twitter links.) “We hope to have a strong social media presence,” said Solomon. “We want to be engaged with the community and create a site for people to visit and learn about important First Amendment news issues.”
→ The startup phase of First Amendment Watch is entirely funded by New York University as a nonpartisan project in the public interest.
Easy to Navigate Topical Tabs
The site has seven tabs on its information bar:
Managing editor Tatiana Serafin
Each tab contains numerous links to relevant news, updates, analysis, opinion and historical materials. See, for example:
- Defamation Suit By Coal Baron Against John Oliver Gets Green Light to Proceed and
- Donald Trump’s Plans for Libel Laws.
- President Trump Blocks Twitter Followers He Doesn’t Like
Profiles — news, analysis & historical backdrop — of Contemporary Controversies
→ Considerable attention is given to some of the most pressing free speech issues of the day, as in the case of Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. The entry for that case is titled Discrimination or Free Speech? What’s At Stake in the Wedding Cake Conflict.
→ Another such entry is The Supreme Court Considers First Amendment Arguments in Gerrymandering Case, the reference being to the oral arguments in Gill v. Whitford. These entries contain links to: audio and video clips, news stories and opinion posts, and lower court opinions and appellate briefs, among other things.
Make the Connection: Linking Today’s Controversies to Those of the Past
Symbolic Speech in Early America: Liberty Tree in colonial Boston
→ From Liberty Tree to Taking a Knee: America’s Founding Era Sheds Light on the NFL Controversy
“Symbolic speech as a form of protest, like taking a knee at a football game while others stand for the National Anthem, enjoys a long history in America. It’s been a powerful form of political expression going back to the protests in the colonies in the 1760s against British oppression. Various forms of symbolic expression—liberty trees, liberty poles, effigies of hated politicians, even the use of the number 45—brought multitudes into the political sphere and was critical in building opposition to British rule. Much of this symbolic expression was controversial and even offensive but a powerful form of protest then and now.” – By Stephen Solomon
Mapping Free Speech Controversies
There is also a Mapping First Amendment Conflicts link that pinpoints timely free speech controversies accordingly to geographical areas. From small to big cities, from social media to the White House, First Amendment conflicts arise nearly every day. They can involve libel suits against a big media organization, an attempt by state legislators to restrict demonstrations, public officials blocking Twitter followers they don’t like, and much more. The endless challenges to freedom of expression raise vital questions of constitutional law and the place of free speech in a democratic society. All one has to do is click on the map icons to get brief descriptions of controversies large and small as well as links to more information.
Thus, if you click on the Washington State pointer, this pops up:
A Republican State Senator introduced a measure aimed at criminalizing what he calls “economic terrorism.” It “would make protesting a class C felony should it cause any sort of “economic disruption” or “jeopardize human life and property.”” http://thehill.com/blogs/blog-briefing-room/306580-washington-
Six Topical Links Loaded with Content
Video Links
There are some interesting video links on the site as well. For example:
- Justice Anthony Kennedy and UC President Janet Napolitano on Free Speech
- Jack Phillips Story (the baker in the Masterpiece Cakeshop case)
- A John Oliver clip related to a defamation action brought by Robert Murray)
Future Plans
Plans for the future involve invited comment from experts as well as original videos and podcasts.
And yes, for those of you who wish to support this website, there is a tab you can click on to donate to it. Though NYU provided startup funding, the site can continue only with outside funding.
* * * Other First Amendment Websites * * *
- First Amendment Online Library (Foundational for Individual Rights in Education)
- First Amendment Encyclopedia (Middle Tennessee State University)
- Volokh Conspiracy
- Media Law Resource Center
- U.S. Press Freedom Tracker
- In a Crowded Theater
- Newseum Institute
- Constitutional Law Prof Blog
History of Film Censorship Timeline
Prof. Laura Wittern-Keller
Over at FIRE’s First Amendment Library, they have just posted an impressive History of Film Censorship Timeline.
The timeline was created by Professor Laura Wittern-Keller, author of Freedom of the Screen: Legal Challenges to State Film Censorship, 1915-1981 (2008) and The Miracle Case: Film Censorship and the Supreme Court (2008).
Scholarly Articles: One New, One Forthcoming
- Leslie Kendrick, Free Speech as a Special Right, Philosophy and Public Affairs (2017)
Prof. Leslie Hendrick
Abstract: Many theorists treat free speech as a special right. Other theorists argue that, in order for free speech to be important, it must be a special right, but they conclude that it is not. What the term “special right” means in these contexts, however, remains elusive. The term usually suggests that the right in question is distinguishable from the usual governmental decision making processes and from other rights. But just how distinctive the right must be, and in what ways, is rarely defined clearly. Indeed, many discussions of free speech assume quite demanding criteria for a special right of freedom of speech, even as these criteria remain incompletely articulated.
This paper seeks to define the criteria for a special right. It argues that the idea of a special right actually conceals two separate requirements. First, a special right must be distinct, in that the activities covered by the right must be analytically distinguishable from the activities outside of it. Second, a special right must be robust in the protection it affords. Most theories demand that a free speech right be highly distinctive, if not singular, and that it receive highly robust protection. By contrast, this paper posits that distinctiveness is a requirement of a special right only to a minimal extent and robustness, as commonly understood, not at all. On the revised criteria offered here, it seems possible that speech may after all be special, though the free speech right we want may be different from the one we can have.
- Alexander Tsesis, Social Media Accountability for Terrorist Propaganda, Fordham Law Review (2017)
Prof. Alexander Tsesis
Abstract: Terrorist organizations have found social media websites to be invaluable for disseminating ideology, recruiting terrorists, and planning operations. National and international leaders have repeatedly pointed out the dangers terrorists pose to ordinary people and state institutions. In the United States, the federal Communications Decency Act’s Section 230 provides social networking websites with immunity against civil law suits. Litigants have therefore been unsuccessful in obtaining redress against internet companies who host or disseminate third-party terrorist content. This Article demonstrates that Section 230 does not bar private parties from recovery if they can prove that a social media company had received about specific webpages, videos, posts, articles, IP addresses, or accounts of foreign terrorist organizations; the company’s failure to remove the material; a terrorist’s subsequent viewing of or interacting with the material on the website; and that terrorist’s acting upon the propaganda to harm the plaintiff.
This Article argues that irrespective of civil immunity, the First Amendment does not limit Congress’s authority to impose criminal liability on those content intermediaries who have been notified that their websites are hosting third-party foreign terrorist incitement, recruitment, or instruction. Neither the FirstAmendment nor the Communications Decency Act prevents this form of federal criminal prosecution. A social media company can be prosecuted for material support of terrorism if it is knowingly providing a platform to organizations or individuals who advocate the commission of terrorist acts. Mechanisms will also need to be created that can enable administrators to take emergency measures, while simultaneously preserving the due process rights of internet intermediaries to challenge orders to immediately block, temporarily remove, or permanently destroy data.
Podcast
- Alex Morey & Nico Perrino, Is this the day the Internet dies?, So to Speak (FIRE), Oct. 5, 2017
The experts are calling it the free speech debate of the next decade: What are the rules for what people can say — and see — online? Who decides? And who pays the price when “The Delete Squad” gets it wrong?
On this episode of So to Speak: The Free Speech Podcast, they tackle the growing power private companies have over our information online. FIRE’s Alex Morey talks to experts on all sides of the issue, from the Facebook team working to keep the social network uncensored — but also safe — for its users, to directors at the Electronic Frontier Foundation and the Committee to Protect Journalists, and more.
When one entity can unilaterally censor billions of users at the push of a button, what does it mean for the future of the internet? “Is this the day the Internet dies?”
Coming: Podcast of Event on Campus Speech
→ Last evening FIRE and the Heterodox Academy held a panel discussion entitled “Viewpoint Diversity on Campus.” The event was held at New York University.
The scheduled panelists were:
- Mark Lilla, professor, Columbia University
- Nadine Strossen, professor, New York Law School; former president, ACLU
- April Kelly-Woessner, professor, Elizabethtown College
- Sam Abrams, professor, Sarah Lawrence College, and
- Nico Perrino (moderator), host, So to Speak: The Free Speech Podcast; director of communications, FIRE
→ Podcast coming soon.
2017-2018 Term: First Amendment Free Expression Cases
Cert. Granted
- Janus v. American Federation of State, Municipal and County Employees
- Masterpiece Cakeshop v. Colorado Civil Rights Commission
Pending: Cert. Petitions
- Shepard v. Florida Judicial Qualifications Commission
- Tobinick v. Novella
- Lozman v. City of Riviera Beach, Florida
- Harris v. Cooper
- National Institute of Family and Life Advocates v. Becerra
- A Woman’s Friend Pregnancy Resource Clinic v. Becerra
- Livingwell Medical Clinic, Inc. v. Becerra
Cert. Denied
Free-Speech Related Cases: Cert. Granted
- 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.)
Free-Speech Related Cases: Cert. Denied
- MasTec Advanced Technologies v. National Labor Relations Board ((1) Whether, under NLRB v. Local Union No. 1229, International Brotherhood of Electrical Workers (Jefferson Standard), an employer may discharge an employee for his or her disloyalty when that employee makes disparaging and disloyal public statements about the employer’s only customer; and (2) whether, in such cases, the employee’s disloyalty is measured under an objective or subjective standard.)
→ NEXT SCHEDULED FAN #166 — October 18, 2017
→ LAST SCHEDULED FAN #164 — 1917 Masses Case to be Reargued in Second Circuit — Floyd Abrams & Kathleen Sullivan to Argue Case