Be sure to have Alexa, or Echo, or Seri, or your Google Mini save the date for an important upcoming conference on artificial intelligence. On Saturday, February 17, 2018, from 9 am to 5 pm, Seattle University Law School will host a conference titled:
Singularity: Artificial Intelligence & the Law (Casey Commons, Seattle University)
→Welcome Remarks from Dean Annette Clark
→ Keynote Speaker: Ryan Calo, University of Washington School of Law
Panel 1, Robotic Speech and the First Amendment: David Skover, Seattle University School of Law; Helen Norton, University of Colorado Law School; Bruce Johnson, Partner, Davis Wright Tremaine. (This panel will discuss the issues raised in the forthcoming Collins & Skover book Robotica: Speech Rights & Artificial Intelligence (Cambridge University Press, May 2018), and will be moderated by Seattle University Law Professor Gregory Silverman.)
Panel 2, Accountability for the Actions of Robots: Ryan Calo, University of Washington School of Law; Elizabeth Joh, UC-Davis School of Law (This panel will focus on Professor Calo’s research into the liability consequences when robots cause harm; a third panelist confirmation is still pending.)
Panel 3, Ethical Considerations in Artificial Intelligence: Justin Tiehen, University of Puget Sound; Ariela Tubert, University of Puget Sound; Mark Van Hollebeke, Director of Privacy, Microsoft. (This panel features will consider discreet issues in AI with an emphasis on the ethical issues in evaluating new technologies, including where ethical and legal considerations intersect.)
Cato to host panel on Janus v. American Federation
Title: “Should Public-Sector Workers Be Forced to Pay Union Fees?: A Preview of Janus v. American Federation of State, County, and Municipal Employees“
Date: February 15, 2018 12:00PM to 1:30PM EST
Location: Hayek Auditorium, Cato Institute, Washington, D.C.
Participants: Raymond J. LaJeunesse Jr., Vice President and Legal Director, National Right to Work Legal Defense Foundation; Donald B. Verrilli Jr., Partner, Munger, Tolles & Olson and former Solicitor General of the United States; and Ilya Shapiro, Senior Fellow in Constitutional Studies, Cato Institute; moderated by Trevor Burrus, Research Fellow, Cato Institute.
Description: On February 26, the Supreme Court will hear oral argument in Janus v. American Federation of State, County, and Municipal Employees (AFSCME), a case that has the potential to overturn a 40-year-old precedent (Abood v. Detroit Board of Education) that allows public-sector unions to charge nonmembers “agency fees.” Currently, half the states have laws that enable such fees. Mark Janus—an Illinois state employee but not a union member—objects generally to being required to pay AFSCME, as well as to these funds being used to support the union’s ongoing legal fight against the governor’s policy reforms. Janus sued the union for violating his First Amendment rights by compelling these payments. In addition to their responses to that constitutional claim, AFSCME and Illinois have argued throughout the litigation that stare decisis—the prudential doctrine regarding judicial respect for settled precedent—demands that Abood be maintained.
Cato filed an amicus brief (Ilya Shapiro, counsel of record) discussing the historical underpinnings of stare decisis and contending that a proper understanding of stare decisis actually demands that Abood be overturned.
→ If you can’t make it to the event, you can watch it live online at www.cato.org/live and join the conversation on Twitter using #CatoEvents. Follow @CatoEvents on Twitter to get future event updates, live streams, and videos from the Cato Institute.
Related: Eugene Volokh, The Limits of Textualism and the Union Agency Fee Case, The Volokh Conspiracy (Reason.com), Jan. 21, 2018 (“Friday, I argued that there’s no First Amendment problem with compulsory union agency fees in Janus v. ASFCME: Just as there’s generally no Free Speech Clause problem with a government requiring taxpayers to pay it taxes that it then uses to advocate for certain things (e.g., against gang violence, against racism, for religious tolerance, for recycling), so there’s no such problem with a government employer requiring employees to pay agency fees to unions that the unions then use to advocate for various things (e.g., for certain labor contracts or for certain labor legislation). Some commenters responded that the Constitution does distinguish the two: The Constitution, they noted, specifically provides for the taxing power, but not for requiring agency fee payments. . . .”)
Danielle Lewis
Upcoming PARMA Conference: “Effective Governing & the First Amendment”
San Francisco Partners Danielle Lewis and Gregg Thornton will speak at the 44thAnnual PARMA Conference, to be held on February 14, 15 and 16, in Monterey, California.
In a session entitled, “Effective Governing and the First Amendment,” Ms. Lewis and Mr. Thornton will discuss strategies and protocols to address compliance with Constitutional provisions and state law in the face of challenges to the efficient operation of local government, including the responsibilities of public officials and law enforcement.
New Policy Report on Censorship
- Cato Policy Report, The New World of Censorship (Dec. 2017) (The internet age has been a boon to free speech in many ways — but it also brings new challenges, including the chilling effect of government surveillance on free expression and the mounting pressure from the European Union on companies like Google and Twitter to censor and monitor speech worldwide. How should we counter these attempts to censor “extremist speech”? DANIELLE KEATS CITRON of the University of Maryland Law School joined Cato’s MATTHEW FEENEY and FLEMMING ROSE to discuss these questions at Cato’s conference The Future of the First Amendment in September.)
Podcast Interview with Gen. Counsel of U. Cal.
→ This from the California Law Review: Free Speech: A Conversation with Charles Robinson
Charles Robinson
Abstract: In a conversation with members of the California Law Review recorded in April 2017, Charles Robinson, General Counsel of the University of California, discussed the university’s approach to free speech on campus. A glance at recent headlines from outlets ranging from the San Francisco Chronicle to TIME to Fox News shows a wide range of opinions about UC Berkeley’s legal and moral responsibilities in the most recent controversy around planned far-right speakers at UC Berkeley.
Unlike private universities, public universities are subject to the limits of the First Amendment. The First Amendment applies with the same force on public college campuses as it does in the broader community. See Healy v. James (1972).
Public universities cannot constitutionally prohibit speech based on its content, even when the content is contrary to other values that the university may hold. See Papish v. Board of Curators of University of Missouri (1973). That type of “viewpoint discrimination” is generally proscribed by the First Amendment. Instead, universities must rely on less restrictive limitations such as restrictions on the time, place, and manner of speech or limits on speech directed towards inciting violence and likely to incite violence. See Cox v. New Hampshire (1941); Brandenburg v. Ohio (1969).
In this episode, the General Counsel discusses how UC Berkeley balances the competing values of promoting free speech and taking a stand against hate speech and abhorrent viewpoints. Listen now for a perspective from someone who has been on the front lines of this pressing national issue.
NYPD official Apologizes to the Prospect Park Rape Victim
This from James Webb at the New York Post: “A top NYPD official on Friday issued a stunning apology to the Prospect Park rape victim he helped discredit more than 23 years ago — as the victim spoke out for the first time since her case was finally solved.”
“First she was raped by a stranger in Prospect Park in 1994. Then she was violated again — this time by the cops who questioned her credibility and a Daily News columnist who called the attack a ‘hoax.’ But now, after more than 23 years, she’s finally getting justice.”
“After running new DNA tests, police have identified the man who attacked the then-27-year-old Yale graduate in Prospect Park, linking the heinous crime to James Edward Webb, 68, a serial rapist who is serving 75 years to life at Sing Sing, sources told The Post.”
Martin Garbus
→ Statement From Victim in a 1994 Brooklyn Rape Case, New York Times, Jan. 12, 2018:
Garbus Vindicated: “. . . Daily News, I am a person, whom you printed egregiously cruel lies about, without any real evidence. Those lies shattered what was left of my not-quite 26-year-old psyche. You owe me an apology. A real human being cried countless tears over the pain you caused.”
“When the famous First Amendment lawyer Martin Garbus took up my case against the Daily News, his colleagues were shocked that he would sue the News on my behalf. I wondered aloud why he would risk his career to help me. He answered gravely, ‘The truth matters.'”
U. Alabama: Student Kicked Out for Racism
This from Jeremy Bauer-Wolf for Inside Higher Ed (Jan. 23, 2018):
“[A] student at the University of Alabama has been expelled after she posted videos to Instagram rife with racial slurs, also earning her national condemnation. The same arguments arise again — did the university, a public institution operating as a government representative, break the law?
“‘I think the student would have a strong case for suing the University of Alabama for violating her First Amendment rights,” said Erwin Chemerinsky, a constitutional scholar and dean of the University of California, Berkeley, School of Law. ‘Her speech is protected by the First Amendment, though it is offensive and uses epithets.'”
The student, Harley Barber, published videos to Instagram on Martin Luther King Jr. Day. As she stands near a sink in an initial video, she says that “we don’t waste water because of people in Syria.”
“‘I love how I act like I love black people, because I fucking hate niggers,’ Barber rants in the video, repeating the epithet multiple times. . . .”
→ Statement from University President Stuart R. Bell here
→ Related: Martha Eltagouri & Kristine Phillips, A ‘pro-white’ town manager who wants races to separate refused to quit. So town officials fired him, Washington Post, Jan. 24, 2018
Colorado State University’s First Amendment Conversation Series
From controversial speakers to classroom discussions, from residence hall spaces to student plaza activities: What constitutes protected free speech on campus, and when does it cross the line into unprotected forms of expression? The answers are nuanced and defined by 100 years of case law that center around such concepts as fighting words, the heckler’s veto, symbolic speech, content neutral time/place/manner restrictions, and concerns around safety and disruption to campus operations.
Colorado State University launched the First Amendment Conversation Series last December to help faculty and staff understand the rights and restrictions of free speech and peaceful assembly on campus. The pilot was hosted by the Multicultural Staff and Faculty Network, which will continue to co-sponsor the series going forward. The pilot session was an overwhelming success with registration filling up within two days of a limited announcement to campus. As a result, the University decided to expand the number of sessions it already was planning to offer during the Spring 2018 semester.
→ Related: Spencer Ricks, Utah legislators consider resolution to protect students’ First Amendment rights, St. George News, Jan. 23, 2018
Forthcoming Book on Campus Culture of “Safety”
→ Greg Lukianoff & Jonathan Haidt, The Coddling of the American Mind: How Good Intentions and Bad Ideas Are Setting up a Generation for Failure (Penguin Press, July 17, 2018)
Abstract: The generation now coming of age has been taught three Great Untruths: their feelings are always right; they should avoid pain and discomfort; and they should look for faults in others and not themselves. These three Great Untruths are part of a larger philosophy that sees young people as fragile creatures who must be protected and supervised by adults. But despite the good intentions of the adults who impart them, the Great Untruths are harming kids by teaching them the opposite of ancient wisdom and the opposite of modern psychological findings on grit, growth, and antifragility. The result is rising rates of depression and anxiety, along with endless stories of college campuses torn apart by moralistic divisions and mutual recriminations.
Jonathan Haidt (credit: Dartmouth Review)
This is a book about how we got here. First Amendment expert Greg Lukianoff and social psychologist Jonathan Haidt take us on a tour of the social trends stretching back to the 1980s that have produced the confusion and conflict on campus today, including the loss of unsupervised play time and the birth of social media, all during a time of rising political polarization.
This is a book about how to fix the mess. The culture of “safety” and its intolerance of opposing viewpoints has left many young people anxious and unprepared for adult life, with devastating consequences for them, for their parents, for the companies that will soon hire them, and for a democracy that is already pushed to the brink of violence over its growing political divisions. Lukianoff and Haidt offer a comprehensive set of reforms that will strengthen young people and institutions, allowing us all to reap the benefits of diversity, including viewpoint diversity.
This is a book for anyone who is confused by what’s happening on college campuses today, or has children, or is concerned about the growing inability of Americans to live and work and cooperate across party lines.
New & Forthcoming Scholarly Articles
→ Helen Norton, The Government’s Manufacture of Doubt, First Amendment Law Review (2018)
Abstract: “The manufacture of doubt” refers to a speaker’s strategic efforts to undermine factual assertions that threaten its self-interest. This strategy was perhaps most famously employed by the tobacco industry in its longstanding campaign to contest mounting medical evidence linking cigarettes to a wide range of health risks. At its best, the government’s speech can counter such efforts and protect the public interest, as exemplified by the Surgeon General’s groundbreaking 1964 report on the dangers of tobacco, a report that challenged the industry’s preferred narrative. But the government’s speech is not always so heroic, and governments themselves sometimes seek to manufacture doubt and protect their own interest at the expense of the public’s.
Professor Helen Norton
In this short essay, I examine how the government sometimes seeks to manufacture doubt about factual assertions it perceives as inconsistent with its policy or partisan preferences. I start with some background on the history of government speech in the United States, a history that reveals the diversity and complexity of the government’s expressive choices. Drawing from historical and contemporary examples, I then identify at least three expressive strategies through which the government can manufacture doubt: through its lies and misrepresentations, through its attacks on individuals and institutions that challenge its preferred narrative, and through its choices to bury or deny access to information that it finds inconvenient or dangerous. I close by briefly considering possible responses to these strategies.
The government’s speech can serve, or instead, threaten deliberative democracy. At its best, the government’s voice speaks truth to power both public and private and supports or amplifies the voices of the powerless. But government is not always at its best. Our history and continuing experience reveal a variety of ways in which the government’s expressive choices can manufacture doubt, distort the truth, and frustrate key constitutional values. In this essay, I seek to identify some of these patterns (both longstanding and new) in hopes that we can better recognize and challenge them when they arise.
→ Related: Helen Norton, Remedies and the Government’s Constitutionally Harmful Speech, ConLawNOW (2018 Forthcoming)
* * * *
- Lili Levi, Real “Fake News” and Fake “Fake News,” First Amendment Law Review (2018)
- Ciara Torres-Spelliscy, Campaign Finance, Free Speech, and Boycotts, Harvard Journal of Law and Public Policy (2018)
- Richard Delgado & Jean Stefanic, Four Ironies of Campus Climate, Minnesota Law Review (2017)
FIRE Launches Weekly Video FIREside Chats
Nico Perrino, Announcing a weekly FIRE video series: FIREside Chats:
“We are excited to announce a new series of weekly video conversations with FIRE staff where we candidly discuss the top student and faculty rights stories of the day.”
“In our first episode of FIREside Chats, Will Creeley moderates a discussion about the Anthony Scaramucci controversy at Tufts University with Brynne Madway and Adam Steinbaugh. Afterward, they are joined by Marieke Tuthill Beck-Coon for a conversation about student surveillance at the University of North Carolina at Chapel Hill.”
“New episodes of FIREside Chats will be uploaded to our YouTube channel every week.”
“Don’t miss an episode: subscribe to our YouTube channel today!”
Rap Music and the First Amendment
→ This from The First Amendment Encyclopedia: David L. Hudson, Jr. Rap Music & The First Amendment
New & Notable Blog Post
- Steven N. Schwinn, Tenth Circuit Rejects First Amendment Retaliation Claims, Constitutional Law Prof Blog, Jan. 22, 2018 (The Tenth Circuit ruled last week that a former sheriff and undersheriff enjoyed qualified immunity against claims that they retaliated against employees for exercising free speech. The ruling means that the case is dismissed. The case underscores the power of qualified immunity and the challenges that plaintiffs sometimes face in overcoming it, especially when circuit law hasn’t addressed the plaintiffs’ precise claims.”)
News, Editorials, Op-Eds, & Blog Posts
- Adam Steinbaugh, After FIRE lawsuit, Essex County College finally turns over documents about firing of Black Lives Matter advocate, FIRE, Jan. 23, 2018
- News Release, From the Colonists to Kaepernick–Journalism’s “First Amendment Watch” on the History of Symbolic Protest, NYU, Jan. 23, 2018 (Link to FAW here)
- Deborah Fisher, The Pentagon Papers – the people, the case and legal concepts, The First Amendment Encyclopedia, Jan. 22, 2018
- Alexandra Alter, In an Era of Online Outrage, Do Sensitivity Readers Result in Better Books, or Censorship?, New York Times, Dec. 24, 2017
Last Scheduled FAN: #174 — Special Issue on Legal History — New article “reorients our understanding of the history of speech and press freedoms”
Next Scheduled FAN #176: Wednesday, January 31, 2018