The bigot is not a stand-in for Tom Paine. . . . Reality is not paradoxical. Our answer to the question, does defending Nazis really strengthen the system of free speech, is . . . generally no. Sometimes, defending Nazis is simply defending Nazis. –– Delgado & Stefancic
Last week I profiled Professor Alan Dershowitz’s Washington Post review of Professors Richard Delgado and Jean Stefancic’s Must We Defend Nazis?: : Why the First Amendment Should Not Protect Hate Speech and White Supremacy. In the spirit of a robust exchange of views, I invited some replies to that review.
Professor Shannon Gilreath kindly accepted my invitation. Gilreath is a Professor of Law and Professor of Women’s, Gender, and Sexuality Studies at Wake Forest University. He is the author of The End of Straight Supremacy (2011), in which he argues that anti-equality propaganda is incompatible with the right to equality enshrined in the Fourteenth Amendment. His reply is set out below (an invitation has been extended to Professor Dershowitz to respond).
______ REPLY ______
Must We Defend Nazis? is a timely update to Richard Delgado and Jean Stefancic’s now classic theory on equality and freedom of expression. Their theory has influenced a generation of lawyers to reconceptualize so-called hate speech, not for the ideas it expresses but for the injury—the discrimination—it effectuates. Once this perspective is understood, the old canard that we must “protect the ideas we hate” falls apart.
Delgado and Stefancic do not advocate the suppression of ideas or viewpoints, but rather the responsible regulation of certain types of speech as action—as actually doing the material discrimination they are designed to do. Their theory is not designed to shut down civil dialogue or to safeguard fragile feelings. It is about inequality and the role a narrowly-defined class of speech plays in creating and perpetuating inequality.
Professor Shannon Gilreath
In his review, Professor Alan Dershowitz instead worries about majoritarian condemnation of some ideas as “evil” and what perils to democracy might follow. None of the examples he offers is even remotely related to the kind of equality practice in speech that Delgado and Stefancic propose.
The case for “reasonable regulations”
First, he suggests that Delgado and Stefancic’s theory may support the silencing of activists who argue for Israel’s right to exist. But nothing in the book supports a heckler’s veto on political discourse. And there is definitely no support for anti-Semitic harangue dressed up as anti-Zionist critique. This is not to say that such things aren’t happening on some campuses. It is merely to point out that Delgado and Stefancic in no way support it or condone it. In fact, Professor Delgado and I collaborated on a symposium to address contemporary problems in free speech, and one of the issues included at Delgado’s suggestion was “the new anti-Semitism,” as Kenneth Marcus calls it, that is overtaking some campuses in the name of free expression.
Professor Jean Stefancic
In reality, Delgado and Stefancic offer a First Amendment theory that actually would allow reasonable regulation of anti-Semitic speech in ways that promote the equality interests of American Jews. The ACLU’s absolutist position instead prioritizes Nazis—a fact Dershowitz admits by his insistence that Nazi speech is at the core of the First Amendment. For Delgado and Stefancic, a commitment to equality lies at the core of a First Amendment utilized to operationalize the equality that, thanks to the Fourteenth Amendment, is at the heart of the Constitution itself.
When “neutral” is not neutral
Dershowitz prefers “neutral” speech regulations, dismissing the authors’ warning that such principles do little for the vulnerable in a system that pretends majority and minority start from the same position. He cites “time, place, and manner” restrictions. Such limitations may work if the question really was one of “hurt feelings,” as in regulations on funeral picketing, for example. They do nothing to deal with speech that produces discrimination at a systematic level. For example, a poster demanding that “Blacks Go Back to Africa” permitted in the common area of a dorm but prohibited to be nailed to the door of a black student’s dorm room is an absurd distinction. The discrimination happens regardless.
Professor Richard Delgado
Contrary to the ACLU position of “more speech,” this kind of message isn’t designed to encourage a civil political discussion on race relations. It is designed to frighten and silence. Similarly, a burning cross that is confined to the private property of a white supremacist, as in Virginia v. Black, still produces the inherent injury of discrimination through fear and intimidation, and those who are disposed to enact the harms it represents are buoyed in their desires by the display. The Court’s refusal to see the systemic meaning of such a display was farcical.
The difference in approach from Europe is, I think, explained by the fact that a majority of Americans, unlike Europeans, have never had to grapple first-hand with the kind of violence and misery anti-equality speech can produce. Public displays of anti-Semitic “news” and cartoons (Stürmerkasten) in Nazi Germany served both to cow Jews and to recruit perpetrators. It cannot happen here is too easy an attitude to take up. In fact, since Donald Trump took office, crimes of physical violence against racial minorities and gays and lesbians have risen sharply—over 400% for gays and lesbians alone (see here also). The sharpest spike in university campus crimes has been against Jewish students.
Dr. King & the Klan
Finally, Dershowitz supposes that the triumphs of Martin Luther King would have been impossible in a system other than the absolutist one he defends. This particular jab seems especially dishonest, since Brandenburg v. Ohio, establishing our recent, Klan-friendly theory of free speech, wasn’t decided until a year after King’s death. Suppressed in Dershowitz’s evenhanded treatment of the speech of Nazis and Martin King is the reality that Nazis promote inequality for minorities and King was promoting equality. This is no small detail for Delgado and Stefancic who underscore that ours is a constitutional system decidedly not neutral on equality. They offer us a theory of speech that prioritizes equality as a substantive right. And the guidance they provide may be more critical today than ever before.
* Related *
→ Symposium, “Equality-Based Perspectives on the Free Speech Norm — Twenty-First Century Considerations,” Wake Forest Law Review (2009) (introduction here)
→ Gilreath, ”Tell Your Faggot Friend He Owes Me $500 for My Broken Hand’: Thoughts on a Substantive Equality Theory of Free Speech,'” Wake Forest Law Review (2009)
→ Delgado & Stefanic, “Four Observations About Hate Speech,” Wake Forest Law Review (2009)
“Polish President signs controversial Holocaust bill into law”
The bill’s backers say talking about Polish complicity in Nazi genocide is a form of group defamation.
President Andrzej Duda (credit Janek Skarzynski/AFP/Getty Images)
This from James Masters over at CNN: “Polish President Andrzej Duda signed Poland’s controversial new Holocaust bill late Tuesday ahead of it being assessed by the country’s Constitutional Tribunal. The law would make it illegal to accuse the nation of complicity in crimes committed by Nazi Germany, including the Holocaust. It would also ban the use of terms such as “Polish death camps” in relation to Auschwitz and other such camps located in Nazi-occupied Poland….”
→ This from Jacob Sullum writing in Reason: “In Poland, as in several other European countries, it is a crime to deny the Holocaust. Soon, thanks to [the new law . . . will make it] a crime to discuss the Holocaust too frankly.”
“The . . . ban on references to Polish complicity in Nazi genocide, which has provoked outrage in Israel and around the world, may seem inconsistent with the ban on Holocaust denial. But the two taboos are of a piece with each other and with Poland’s prohibition of ethnic insults—a fact that should give pause to American fans of European-style speech regulation.”
“The Polish [law] makes it a crime, punishable by fines and up to three years in prison, to accuse ‘the Polish nation, or the Polish state, of being responsible or complicit in the Nazi crimes committed by the Third German Reich.’ The legislation was motivated largely by anger at the common use of phrases like ‘Polish death camps,’ which could be read to mean that the war crimes committed by Germans in occupied Poland were a project of the Polish government.”
“‘German Nazi crimes are attributed to Poles,” Deputy Justice Minister Patryk Jaki complained . . . . ‘And so far the Polish state has not been able to effectively fight these types of insults to the Polish nation.'”
“Some of these ‘insults’ happen to be true, since part of ‘the Polish nation’ was “complicit in the Nazi crimes.’ Poles saved Jews, but Poles also murdered Jews, under Nazi instruction and on their own initiative. . . .”
(Photo by Scott Barbour/Getty Images)
→ Atika Shubert & Antonia Mortensen, Polish Holocaust law sows ‘distortions,’ Poland’s chief rabbi says, CNN, Feb. 9, 2018 (includes video feed)
→ JTA, Poland isn’t the only country censoring speech about the Holocaust, The Jerusalem Post, Feb. 7, 2018
“New Slate Of Commissioners Should Elevate FTC’s Consideration of First Amendment”
This from Glenn G. Lammi writing in Forbes: “The U.S. Senate Committee on Commerce, Science, and Transportation has scheduled a hearing for . . . February 14, 2018, on the nominations of a new Chairman and three new Commissioners to the Federal Trade Commission (FTC). In recent years, FTC has become the primary national regulator of consumer data privacy and security, a responsibility that accords the Commission a staggering amount of influence over an American economy increasingly fueled by information.”
“When utilizing that authority over how businesses treat consumer data, the Commission has accorded little or no regard to the First Amendment. Data is speech, a reality that the incoming Chairman and Commissioners must incorporate into consumer-protection enforcement under § 5 of the Federal Trade Commission Act. . . ”
Paul M. Smith on Conservatives and the First Amendment
Paul M. Smith
Joseph P. Williams, writing in a recent issue of US News & World Report, quoted noted appellate lawyer Paul M. Smith several times in his article titled “The Right’s First Amendment Push.” Here are some of those quotes:
- “‘If you go back three decades or more, conservative justices tended to be very reluctant to enforce the First Amendment, accusing the liberals of being activists on that constitutional provision and others,’ Smith writes.”
- “Now that the political balance of power has shifted to the right, Smith says, ‘[the court’s] conservative justices tend to be every bit as aggressive in using their authority to enforce the Constitution as the liberal justices, though very often in different contexts.'”
- “Nevertheless, ‘on the other hand, there are [some] cases in which it is the liberal wing of the Court that embraces the First Amendment over the opposition of the conservative wing,’ Smith says. ‘That seems like a likely divide on the pending gerrymandering cases’ in which Democrats are challenging Republicans for rigging political districts to permanently shut them out of power and restrict the political speech of their liberal constituencies.”
- At a Georgetown conference about the upcoming court term last week, Smith told an audience of law students and journalists about arguing a similar union-dues-vs.-free-speech case before the high court three years ago. He told the justices that fair-share fees don’t equal union membership – ‘it’s only money, and nobody thinks it means that they believe in the union’ – when Kennedy threw him a curveball. ‘I get to the end of the argument, and Justice Kennedy says, ‘You mean to tell me people give up their first amendment rights when they go to work for the government?’ Smith said.”
Friends of the Court — Volokh & Shapiro: Sometimes United, Sometimes Not
Eugene Volokh and Ilya Shapiro are busy filing briefs in a string of freedom of expression cases. Typically they agree, sometimes not. Yes, it happens . . . even when the claim arises in a First Amendment freedom of expression case. Simply consider the cases and briefs mentioned below.
I> Cake Case: Volokh & Shapiro on different sides
In Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission Professors Eugene Volokh and Dale Carpenter and filed an amicus brief in support of the Respondents in the case. In that brief they argued:
This Court must draw a line that properly respects both the First Amendment rights of those who are truly being compelled to create speech, and the legitimate interests of states that are trying to protect their citizens from discrimination. Bakers, including bakers of wedding cakes, are on the constitutionally unprotected side of the line.
Ilya Shapiro, counsel of record for the Petitioners, filed an amicus brief on behalf of the Cato Institute, Reason Foundation, and the Individual Rights Foundation. In that brief they argued:
[W]edding cakes are an expressive art form that should be given full First Amendment protection.
II>T-Shirt Case: Volokh & Shapiro United
In AAron Baker for Gay & Lesbian Services Org., et al v. Hand On Originals, Inc. (pending in Ky. Supreme Ct), Professor Volokh and Christopher L. Thacker filed an amicus brief on behalf of the Cato Institute in support of the Appellee, a company that refused to print t-shirts promoting a gay-pride event (See Ilya Shapiro’s account here). In relevant part they argued:
Printers, like other speakers and like the drivers in Wooley, have a First Amendment right to choose which speech they will help disseminate and which they will not. The district court’s grant of summary judgment, which correctly recognizes and protects this right, should therefore be upheld.
III>Wedding Photographer Case: Volokh & Shapiro Again United
The case is Telescope Media Group v. Lindsey – Alliance Defending Freedom (pending in 8th Cir.). The issue in the case is whether a state law requirement that they serve same-sex couples seeking wedding video services violates the Appellants’ First and Fourteenth Amendment rights to free speech, expressive association, free exercise, equal protection, and due process. Here, too Volokh and Cato were on the same side, arguing in an amicus brief in favor of the First Amendment claim. In that brief (Jonathan R. Whitehead, counsel of record) they argued:
Filmmakers, like others engaged in commercial expression—and like the drivers in Wooley v. Maynard —have a First Amendment right to choose which speech they will disseminate.
IV> The Union Agency Shop Case: Volokh & Shapiro Again on Different Sides
In Janus v. American Federation of State County, and Municipal Employees the issue is whether Abood v. Detroit Board of Education should be overruled and public-sector “agency shop” arrangements invalidated under the First Amendment. Here again, there is a division in the ranks with Shapiro taking a strong anti-union pro-First Amendment stance in his amicus brief while Volokh is on the union’ side in the amicus brief he co-authored with Professor William Baude:
The alleged deficiencies of Abood’s solution to the First Amendment problem of compelled funding of private speech can only justify overruling that case if the First Amendment problem actually exists. To conclude that Abood should be overruled because agency fees violate the First Amendment, one must do more than simply critique the internal logic of Abood. One must create what was absent in Abood: a justification, from first principles, for a First Amendment right not to subsidize speech with which one disagrees. If all that can be found to justify this supposedly “bedrock principle” is circular citations and ipse dixit, then Abood was not wrongly decided and should not be overturned.
Masterpiece Cakeshop Case Discussed & Debated at 1-A Salon
It was quite a mind-opening evening at the Ballard Spahr offices this past Monday when the First Amendment Salon hosted its 16th event — a discussion of Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. A taster-friendly cake was served to the participants and attendees.
Sarah Warbelow, Ilya Shapiro, Steve Wermiel, Robert Corn-Revere & John Paul Schnapper-Casteras
Steve Wermiel moderated the discussion between Robert Corn-Revere and Ilya Shapiro on the baker’s side and JP Schnapper-Casteras (formerly of LDF & now in private practice) and Sarah Warbelow on the commission’s side.Professor Steve Wermiel moderated the discussion between Robert Corn-Revere and Ilya Shapiro on the baker’s side and JP Schnapper-Casteras and Sarah Warbelow on the commission’s side.
→ A video of the event will be posted soon on the Salon’s website.
→ ht: to Nico Perrino and Aaron Reese from FIRE for doing all the great video work (and pics, too).
“Court Bars Univ. of Washington from Charging College Republicans $17,000 Security Fee”
This from Professor Volokh writing in The Volokh Conspiracy (Reason.com):
From College Republicans v. Cauce:
The College Republicans have organized a “Freedom Rally,” scheduled to take place in Red Square on the afternoon of Saturday, February 10, 2018, and to feature Joey Gibson, the leader of the controversial, conservative political group Patriot Prayer. Based upon factors including the time and location of the event, the estimated number of attendees, and the responses at prior events featuring Mr. Gibson and Patriot Prayer, the UW has determined that the Freedom Rally requires enhanced security, including the presence of additional officers from the UW Police Department. Pursuant to its Security Fee Policy, the UW seeks from the College Republicans an estimated $17,000 as reimbursement for its security costs. The UW does not require that the fee be paid in advance, but will calculate and assess the total amount owed following the event…. Based upon the pleadings filed at this stage in the proceedings, there is no dispute that
Red Square is a limited public forum…. In a limited public forum, restrictions on speech must be reasonable and viewpoint neutral. A reasonable restriction is one that is “based on a standard that is definite and objective.” A viewpoint neutral restriction is one that does not suppress speech “merely because public officials oppose the speaker’s view.” The Court finds that the Security Fee Policy is neither reasonable nor viewpoint neutral.
First, the Security Fee Policy fails to provide “narrowly drawn, reasonable and definite standards,” and thereby gives administrators broad discretion to determine how much to charge student organizations for enhanced security, or whether to charge at all. See Forsyth County v. Nationalist Movement (1992). As in Forsyth, UW administrators are “not required to rely on any objective factors,” and “need not provide any explanation for [their] decision[s].” Instead, administrators “must necessarily examine the content of the message that is conveyed, estimate the response of others to that content, and judge the number of police necessary to meet that response. The fee assessed will depend on the administrator’s measure of the amount of hostility likely to be created by the speech based on its content.”
Apparently, the $17,000 fee assessed upon the College Republicans reflected the UW Police Department’s estimate that the Freedom Rally would require 24 officers over 4.5 hours, at an hourly rate of $157.52 per officer. While the Chief of Police offers a lengthy discussion of the “objective facts” he considered (e.g., the fact that Mr. Gibson was assaulted and pepper sprayed at recent rallies, the fact that Patriot Prayer has “members who have engaged in open carry in the past,” etc.), nowhere does he explain how these facts support his determination as to the number of officers needed. Nor does he identify the “open-source websites” that the UW Police Department referenced to corroborate information about the event. On this record, the Court cannot conclude that the estimated $17,000 fee is the product of a “definite and objective” process.
Second, the Security Fee Policy directs administrators to assess fees based upon the “history or examples of violence, bodily harm, property damage, significant disruption of campus operations” and violations of “the campus code of conduct and state and federal law.” Administrators relying on instances of past protests, either for or against a student organization or speaker, will inevitably impose elevated fees for events featuring speech that is controversial or provocative and likely to draw opposition. Assessing security costs in this manner impermissibly risks suppression of “speech on only one side of a contentious debate.” …
“Forsyth indeed expressly holds that the government can’t calculate security fees based on the expected hostility of some listeners to the speaker’s message. The only question is whether a different rule would apply to a ‘limited public forum’ (such as university property that the government needn’t open to student-invited speakers in the first place) as to a ‘traditional public forum’ like the streets and sidewalks involved in Forsyth, where the government must generally allow public speech.”
“But even in a limited public forum, viewpoint-neutrality is required. And Matal v. Tam (the Slants case) strongly suggests that discrimination against speech based on public reaction to its supposedly offensive message is indeed viewpoint discrimination: Justice Alito’s four-Justice lead opinion stated that denying a benefit to speech “that is offensive to a substantial percentage of the members of any group’ ‘is viewpoint discrimination’; Justice Kennedy’s four-Justice concurrence stated that the government “may not insulate a law from charges of viewpoint discrimination by tying censorship to the reaction of the speaker’s audience.’ See also Sonnier v. Crain (5th Cir. 2010) (treating Forsyth as applicable to speech on university campuses). Thanks to Annie Wagner for the pointer.”
→ Nathalie Graham & Steven Hsiech, Police Made Five Arrests and Deployed Pepper Spray at the UW Patriot Prayer Rally, The Stranger, Feb. 10, 2018
FIRE’s 10 Worst Colleges for Free Speech: 2018
List of Colleges (full story here)
- Rensselaer Polytechnic Institute (Troy, N.Y.)
- Drexel University (Philadelphia, Pa.)
- Harvard University (Cambridge, Mass.)
- Los Angeles Community College (Los Angeles Ca)
- Fordham University (New York, N.Y.)
- Evergreen State College (Olympia, Wash.)
- Albion College (Albion, Mich.)
- Northwestern University (Evanston, Ill.)
- University of California, Berkeley (Berkeley, Calif.)
- Texas State University (San Marcos, Texas)
→ Lifetime Censorship Award: DePaul University (Chicago, Ill.)
Yet Another! Duke Law to Launch First Amendment Clinic
Ray Gronberg at The Herald-Sunreports that “Duke University’s School of Law is adding to a set of legal clinic offerings it has styled as a ‘public interest law firm’ that allows professors and students to take on sometimes controversial clients and causes.”
Professor Jefferson Powell
“Duke Law is poised to launch another clinic, its 12th, this fall semester. It will focus on First Amendment law and has five years’ worth of operational funding on the way from a New York City-based foundation. Professor Jefferson Powell, a U.S. Department of Justice official in the Clinton and Obama administrations, is set to become its director. . . .”
“Powell said Duke Law’s soon-to-retire dean, former U.S. District Court Judge David Levi, has pushed the development of its clinical program because ‘it serves his vision of a legal education that integrates the practical and the professional.'”
Coming Event: Heritage panel on This Term’s Free-Speech Cases
→Title: The Fight for Free Speech: Abortion, Voting, and Unions at the Supreme Court
→ Panelists: Todd Gaziano, Jacob Huebert & Jordan Lorence / Elizabeth Slattery will moderate
→ Date & Time: 20 February 2018, 12:00-1:00 pm
→ Location: The Heritage Foundation, Allison Auditorium, 214 Massachusetts Ave NE, Washington, DC
→ RSVPhere
Forthcoming Books
- ACLU, The ACLU Guide to Protest: Empowering You to Take Action Today (Atria Books (July 1, 2019)
- Linda R. Monk, The Bill of Rights: A User’s Guide (Hachette Books (April 10, 2018)
Forthcoming Scholarly Article
- Nelson Tebbe, Conscience and Equality, Journal of Civil Rights and Economic Development (2018 Forthcoming)
Epps on Janus v. American Federation
- Garrett Epps, The Bogus ‘Free Speech’ Argument Against Unions, The Atlantic, Feb. 14, 2018
Podcast with Former University of Alaska President
- Nico Perrino interviews University of Alaska President Emeritus Mark Hamilton, So to Speak (FIRE)
Today in First Amendment History
- Obscenity Charges for Publishing Ulysses, Today in Civil Liberties History
“A New York-based literary magazine, The Little Review, faced obscenity charges on this day for publishing excerpts from James Joyce’s acclaimed novel, Ulysses. This was the first publication of material from Joyce’s novel in the U.S. In a later case involving a ban on importing the novel, a federal District Court declared the novel not obscene in United States v. One Book Called Ulysses, on December 6, 1933. The Second Circuit Court of Appeals upheld the decision on August 7, 1934. The Ulysses case was one of the most important victories over censorship in the pre-World War II era.”
“Hundreds of people crowded into the courtroom on the first day of the trial. The defense attorney attempted to have the entire offending chapter from Ulyssesread in court. The judge denied the motion, holding that it would offend a young woman in the courtroom. That woman was Jane Heap, editor of The Little Review, which published the chapter. John Sumner of the New York Society for the Suppression of Vice had advised the judge that Ulysses was too “improper to place upon the records” of the court.”
2017-2018 Term: First Amendment Free Expression Cases
Cert. Granted
- National Institute of Family and Life Advocates v. Becerra (argument: March 20, 2018)
- Lozman v. City of Riviera Beach, Florida (argument: Feb. 27, 2018)
- Minnesota Voters Alliance v. Mansky (argument: Feb. 28, 2018)
- Janus v. American Federation of State, Municipal and County Employees(argument: Feb. 26, 2018)
- Masterpiece Cakeshop v. Colorado Civil Rights Commission (argument: Dec. 5, 2017)
Pending: Cert. Petitions
- CTIA v. City of Berkeley
- Harris v. Cooper
- A Woman’s Friend Pregnancy Resource Clinic v. Becerra
- Livingwell Medical Clinic, Inc. v. Becerra
- Berninger v. Federal Communications Commission
Review Denied
- Shepard v. Florida Judicial Qualifications Commission
- Morris v. Texas (dismissed for want of jurisdiction)
- Connecticut v. Baccala
- Tobinick v. Novella
- Muccio v. Minnesota
- Elonis v. United States
- Final Exit Network, Inc. v. Minnesota
Free-Speech Related Cases: Cert. Granted
- Carpenter v. United States (Whether the warrantless seizure and search of historical cell phone records revealing the location and movements of a cellphone user over the course of 127 days are permitted by the Fourth Amendment.)
Free-Speech Related Cases: Cert. Pending
- Blagojevich v. United States (When the Government prosecutes a public official for soliciting campaign contributions in alleged violation of the Hobbs Act or other federal anti-corruption laws, must the Government prove the defendant made an “explicit promise or undertaking” in exchange for the contribution, McCormick v. United States (1991) (emphasis added), as five circuits require, or “only . . . that a public official has obtained a payment . . . knowing that [it] was made in return for official acts,” Evans v. United States (1992), as three other circuits hold?)
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 Supreme Court Conference: February 16, 2018
Last Scheduled FAN # 177: “Make No Law” First Amendment Podcast Series Launched
Next Scheduled FAN # 179: Wednesday, February 21, 2018