FAN 182 (First Amendment News) Can free speech be progressive? Professor Seidman thinks not

Civil liberties once were radical.  — Laura Weinrib (2016) 

The notion that our free speech tradition might be weaponized to advance progressive ends is fanciful. — Louis Michael Seidman

Professor Louis Michael Seidman

Can Free Speech Be Progressive? That’s both the question raised and the title of a forthcoming Columbia Law Review article by Professor Louis Seidman. Without mincing words, Seidman responds: “The answer is no. At least the answer is no if we are talking about free speech in the American context, with all the historical, sociological, and philosophical baggage that comes with the modern, American free speech right. . . .” Of course, there’s more to the story, the nuanced part.  That said, here are a few excerpts:

Sword for the Powerful: “With the receding of Warren Court liberalism, free speech law took a sharp right turn. Instead of providing a shield for the powerless, the first amendment became a sword used by people at the apex of the American hierarchy of power. Among its victims: proponents of campaign finance reform, opponents of cigarette addiction, the LBGTQ community, labor unions, animal rights advocates, environmentalists, targets of hate speech, and abortion providers. While striking down laws that protected all of these groups, the Court upheld a statute that cut off all funding to colleges and universities that refused to allow the military to recruit on campus and a statute that criminalized purely political speech that constituted neither incitement nor a clear and present danger when the speech “materially support[ed]” a group that the State Department labelled as a “foreign terrorist organization.”

Mere Instrumental Utility for Progressives: The free speech victories of the past “do not make free speech progressive. The working class might be slightly better off because of the few crumbs cast their way by the Trump tax law. That does not make the law redistributive. Similarly, the fact that free speech protects the left from the most extreme threats to it does not make the speech right progressive. The question that I address here is not whether the speech right has instrumental utility in isolated cases or whether it is necessary to minimize extreme downside risks. Instead, I address the claim that the amendment has significant upside potential. Can progressives weaponized free speech by tinkering with constitutional doctrine? Can they convert the first amendment from a sporadically effective shield against annihilation to a powerful sword that would actually promote progressive goals? To answer that question, we need to think hard not just about isolated cases, but about the theory behind the right and the right’s basic structure.”

Not Much Historical Help: “At its core, free speech law entrenches a social view at war with key progressive objectives. For that reason, it is not surprising that throughout American history, the speech right has, at best, provided uncertain protection for the left. The modern, anti-progressive first amendment amounts to the delayed presentation of traits built into the genetic material of the speech right.”

Four Reasons Why Free Speech Cannot be Progressive

1. The Link Between Free Speech and Property Entitlements: “There is an intrinsic relationship between the right to speak and the ownership of places and things. Speech must occur somewhere and, under modern conditions, must use some things for purposes of amplification. In any capitalist economy, most of these places and things are privately owned, and in our capitalist economy, they are distributed in dramatically inegalitarian fashion.”
2. “Granting speech opportunities to some often denies speech opportunities to others. For that reason, the speech right harms speech, as well as nonspeech, interests.”
3. Free Speech & Government Neutrality: “American speech law is dominated by a concern about equality and neutrality. Free speech law’s core commitment is to the proposition that the government may never suppress speech simply because of disagreement with the message that it expresses.”
4. Free Speech & Free Thought: “The assertion of a constitutional right to freedom of speech is dictatorial. . . . [C]onstitutionalizing the right to freedom of speech leads to an anti- liberal mindset. An assertion that the Constitution requires a certain state of affairs is a way of avoiding the necessity for producing actual reasons for why that state of affairs is desirable and just. If the Constitution requires something, then that is the end of the argument, at least in American constitutional culture. Short of a constitutional amendment, a constitutional requirement that a thing must be done just means that it must be done. Once the requirement is established, there is nothing left to talk about.”

A Different Take

• David Cole, Why Free Speech Is Not Enough, New York Review of Books (March 23, 2017)

David Cole of the ACLU

“[W]hile it is true that a right to universal free speech can be invoked by the powerful as well as the weak, by business as well as labor, the right is nonetheless more valuable for the weak. By definition, the powerful are able to achieve their interests through the political process. As a result, they are less likely to need constitutional protections. For the weak, however, constitutional protections may be all they have. While “civil liberties” in their liberal form are universal, they are designed to protect those whose interests are not served by the political process. And that gives them radical potential, even if they are available to all. . . .”

“The classical liberal conceptions of free speech and free press may not be enough to produce a fully informed electorate or to redress the social and economic ills that skew public debate. But as a constitutional matter, they remain the single best defense against an overweening state. More than ever, those are the rights and liberties that will now need our support.”

NAOMI REICE BUCHWALD UNITED STATES DISTRICT JUDGE

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK, March 13, 2018

Re: Knight First Amendment Institute et al. v. Trump et al. 17 Civ. 5205 (NRB)

Dear Counsel:

Judge Naomi Reice Buchwald (credit: Ballotpedia)

At oral argument, the government stated that the blocking of Twitter users on the @POTUS and @Whitellouse accounts would “likely would run afoul of the First Amendment but not because of public forum doctrine” and that “it is probably true that government cannot block individuals purely on the basis of viewpoint from a government account like the @POTUS account,”Hr’gTr.26:19-20,29:16-18. Weunderstoodthetotalityofthegovernment’sposition to be that the First Amendment prohibits the blocking of users from those accounts. We neglected, however, to address the impact of this position on the question currently before the Court-whether such blocking may occur on the @RealDonaldTrump account.

Accordingly, we request that the government submit, by March 28, a letter brief of no more than five pages clarifying its position. If the government continues to take the position that users may not be blocked from the @POTUS and @WhiteHouse accounts, it should explain all of the ways in which the First Amendment analysis differs for those two accounts on the one hand and the @RealDonaldTrump account on the other. If the government no longer takes the position that such blocking is unconstitutional, it should explain why such blocking is in fact permissible. The plaintiffs may submit a responsive letter within seven days of the government’s letter.

Very truly yours,

 11th Circuit Rules on Mask-at-a-Protest case

Professor Steven D. Schwinn

This from Steven D. Schwinn over at Constitutional Law Prof Blog: “A divided panel of the Eleventh Circuit ruled today that officers enjoyed qualified immunity against First and Fourth Amendment claims after arresting an Atlanta Ferguson protestor for wearing a ‘V for Vendetta’ mask. The ruling ends the protestor’s civil-rights action against the officers.”

“The case, Gates v. Khokhar, arose when officers arrested Austin Gates for wearing the mask during the Atlanta protest, and failing to take it off when so ordered by police. Officers charged Gates with a violation of Georgia’s Anti-Mask statute, which, with certain exceptions not relevant here, makes it a misdemeanor for a person to ‘wear[] a mask, hood, or device by which any portion of the face is so hidden, concealed, or covered as to conceal the identity of the wearer” while he is ‘upon any public way or public property.’ Gates sued, arguing that his arrest violated the First and Fourth Amendments.”

“The Eleventh Circuit ruled that the officers enjoyed qualified immunity and dismissed Gates’s federal constitutional claims. The court said that the Georgia Supreme Court had narrowed the Anti-Mask statute to cases where (1) the mask is worn with the intent to conceal the identity of the wearer and (2) the wearer of the mask ‘knows or reasonably should know that [his] conduct provokes a reasonable apprehension of intimidation, threats, or violence.'”

Bar on autopsy reporting held unconstitutional by Nevada High Court 

This from the Reporters Committee for Freedom of the Press: “The Nevada Supreme Court ruled that an order barring the Las Vegas Review-Journal and Associated Press from disseminating or reporting on an anonymized autopsy record for a victim from the Oct. 1 Las Vegas mass shooting is an unconstitutional prior restraint.”

→ Las Vegas Review-Journal v. Eighth Judicial District Court

Gabe Rottman joins Reporters Committee to lead Technology & Press Freedom Project

Gabe Rottman

“Changes in technology are constantly influencing how journalists report and audiences consume the news, and Gabe will lead our efforts to help ensure these advances uphold our civil liberties and support the free flow of information to the public,” said Bruce Brown, executive director of the Reporters Committee. “We are thrilled to have Gabe join our team, and his deep experience will further strengthen our work to advance First Amendment freedoms and protect the newsgathering rights of journalists in the U.S.”

“I’m excited to be joining the Reporters Committee as it expands its work on privacy, surveillance, and other technology issues that impact journalists’ ability to gather and report the news every day,” Rottman said. “The Technology and Press Freedom Project will bring together our legal, policy, and advocacy work in a concentrated effort to help journalists navigate the technology landscape and protect their rights as they shine a light on important issues and keep our communities informed.”

Forthcoming Book on Libel Law

• Eric P. Robinson, Reckless Disregard: St. Amant v. Thompson and the Transformation of Libel Law (LSU Press, December 12, 2018)

Abstract: Until the 1960s, in order to win their cases, libel plaintiffs in the United States had to prove that the statement at issue was published, was about them, harmed their reputation, and was untrue. Thus Montgomery, Alabama Commissioner Lester Bruce Sullivan was able to easily win his libel claims against The New York Times over erroneous statements in a civil rights advertisement. But when his case was appealed to the Supreme Court, the Court invoked principles of accountability of public officials to hold that the First and Fourteenth Amendments required that public officials like Sullivan also show that the defendant acted with “actual malice” – actual knowledge that a statement was untrue or with “reckless disregard” for the accuracy of the statement.

Prof. Eric Robinson

Over the next several years, the Supreme Court decided a number of cases in which it refined and clarified the new libel standards that it had imposed in Sullivan. St. Amant v. Thompson was an important part of this series in which the Court explored the contours of the Sullivan rule and established the definition of “reckless disregard” in the “actual malice” test. Yet while Sullivan and other cases in the succession of decisions that followed it have been subject of significant scholarly and legal literature, the St. Amant case, once called “the most important of the recent Supreme Court libel decisions,” has been comparatively ignored.

Eric Robinson’s analysis of the case and its ramifications fills this gap. Robinson’s study includes a deft examination of the background of the legal proceedings as well as the social and political situation in which it occurred. His analysis of how the Supreme Court dealt with the case includes its internal deliberations and discussions, shedding new light on the favorable ruling for St. Amant which forever changed the U.S. libel law.

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Forthcoming Book 
September 25, 2018

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• Keith Whittington, Speak Freely: Why Universities Must Defend Free Speech (New Forum Books, April 17, 2018)

New & Forthcoming Scholarly Articles

• Abby K. Wood, Ann M. Ravel & Irina Dykhne, Fool Me Once: Regulating ‘Fake News’ and Other Online Advertising, Southern California Law Review (2018 forthcoming)

Abstract: A lack of transparency for online political advertising has long been a problem in American political campaigns. Disinformation attacks that American voters have experienced since the 2016 campaign have made the need for regulatory action more pressing.

Disinformation on social media sometimes takes the form of “fake news”. Fake news is not news, it is native political advertising. Campaign advertising on social media – regardless of veracity – allows campaigns and outside groups to activate a narrow slice of the electorate with micro-targeted appeals. An ad can activate one’s bias or spread disinformation and never be seen again. The group running the ad escapes accountability and does not expose its audience to counter speech. Accountability and possibility of counterspeech are both features of political advertising in other venues, like television, cable, and radio.

co-author Ann Ravel

Political ads on the Internet have escaped transparency requirements due to loopholes baked into the regulatory framework long before the age of social media. The Supreme Court has repeatedly upheld transparency requirements related to political ads, and we expect that it would do so for online political ads as well. . . .

We propose several interventions aimed at transparency. Most importantly, campaign finance regulators should require platforms to store and make available ads run on their platforms, as well as the audience at whom the ad was targeted. Audience availability can be structured to avoid privacy concerns, and it meets an important speech value in the “marketplace of ideas” theory of the First Amendment, that of enabling counter speech. Our proposal for online advertising storage improves upon the existing disclosure requirements for advertising purchases on broadcast, cable, and satellite. It would capture any political advertising, including disinformation, that is promoted via paid distribution on social media, as well as all other online political advertising. Second, Congress should stop preventing regulatory agencies from closing existing loopholes around disclosure and disclaimers. Finally, we propose that government require platforms to allow social media users to opt-in to viewing narrowly-targeted ads or disputed content. Other regulatory efforts aimed at reducing the number of disinformation ads circulating are better left to the platforms for constitutional reasons.

• Rory K. Little, Hating Hate Speech: Why Current First Amendment Doctrine Does Not Condemn a Careful Ban, Hastings Constitutional Law Quarterly (2018)
• Alexander Pechette, Do Patents Abridge the First Amendment Guarantee of Free Speech?, Federal Circuit Bar Journal (March 2018)

3 New Podcasts

• Bret Weinstein, professor in exile, Speaking Freely, FIRE, March 8, 2018 (“Former Evergreen State College Professor Bret Weinstein describes himself as a “professor in exile.” The evolutionary biologist left Evergreen last September in the fallout from the controversy surrounding the school’s planned Day of Absence programming.”)

• “Episode 4: Expert Opinion – Paul Cartledge, Clear & Present Danger, FIRE, March 8, 2018 (Jacob Mchangama talks to Emeritus Professor of Greek Culture at Cambridge University Paul Cartledge. With his intimate knowledge of ancient Greece, we dive deeper into the concepts of free speech and democracy in Athens that were discussed in episode one.)

• Episode 3: The Age of Persecution, Clear & Present Danger, March 1, 2018 (“Rome was the most powerful empire in antiquity. But were the Romans free to speak truth to power? Did history’s first successful Women’s March take place in Rome? And who came out on top when the words of Cicero clashed with the ambition of Caesar and armies of Octavian? Why did historians and astrologers become endangered species when the Republic became an empire? Find out in episode 2 of ‘Clear and Present Danger: A History of Free Speech.'”

News, Editorials, Op-eds & Blog Posts 

1. Alexia Fernández Campbell, National School Walkout: Do students have First Amendment rights at school?, Vox, March 13, 2018
2. Jud Lounsbury, The First Amendment Must Trump Our Aversion to Stormy Details, The Progressive, March 13, 2018
3. ACLU-TN Urges Schools to Protect Students’ First Amendment Rights During Planned Walkouts, WGNS New Radio, March 13, 2018
4. Nico Perrino, Gallup/Knight survey sheds light on changing student attitudes about free speech, FIRE, March 12, 2018
5. David L. Hudson, 9th Circuit decision in public employee speech case is troubling, The First Amendment Encyclopedia, March 12, 2018
6. Erik Wemple, President Trump’s cultural assault on the First Amendment, Washington Post, March 12, 2018
7. Florida becomes ninth state to ban restrictive campus free speech zones, FIRE, March 12, 2018
8. David L. Hudson, Virginia High Court affirms conviction in noose intimidation case, The First Amendment Encyclopedia, March 9, 2018

YouTube: Sonja West & Paul Smith Discuss This Terms’s 1-A Cases 

Sean J. Young, Sonja West, Paul M. Smith, & Peter Canfield 

• New Conceptions of the First Amendment: What’s in the Oven at the US Supreme Court?

→ 27th Annual Georgia Bar Media & Judiciary Conference Georgia Judges, Journalists and Lawyers and the First Amendment

Moderator: Sean J. Young, Legal Director, American Civil Liberties Union of Georgia

Panelists:

• Sonja West, Otis Brumby Distinguished Professor of First Amendment Law, University of Georgia School of Law
• Paul M. Smith, Georgetown University Law Center; Campaign Legal Center, Washington, D.C.

YouTube: Radio Television Digital News Foundation’s 1-A Awards 

Chuck Todd (Broadcasting & Cable)

• Video of Chuck Todd acceptance speech here.
• Video of Joe & Mika also Honored With ‘First Amendment’ Award here
• Video of David Rhodes accepts the 2018 RTDNF First Amendment Service Award here

2017-2018 Term: First Amendment Free Expression Cases

Cert. Granted

1. National Institute of Family and Life Advocates v. Becerra (argument: March 20, 2018)
2. Lozman v. City of Riviera Beach, Florida (argument: Feb. 27, 2018)
3. Minnesota Voters Alliance v. Mansky (argument: Feb. 28, 2018)
4. Janus v. American Federation of State, Municipal and County Employees(argument: Feb. 26, 2018)
5. Masterpiece Cakeshop v. Colorado Civil Rights Commission (argument: Dec. 5, 2017)

Pending: Cert. Petitions 

1. Holmes v. Federal Election Commission
2. Walker v. N.Y.C. Dep’t of Educ. et al.
3. Flanigan’s Enterprise, Inc. v. City of Sandy Springs
4. Nationwide Biweekly Administration, Inc., et al v. Perez
5. CTIA v. City of Berkeley 
6. Harris v. Cooper 
7. A Woman’s Friend Pregnancy Resource Clinic v. Becerra
8. Livingwell Medical Clinic, Inc. v. Becerra
9. Berninger v. Federal Communications Commission

Review Denied

1. Shepard v. Florida Judicial Qualifications Commission 
2. Morris v. Texas (dismissed for want of jurisdiction)
3. Connecticut v. Baccala
4. Tobinick v. Novella
5. Muccio v. Minnesota
6. Elonis v. United States
7. 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.)

Last Scheduled FAN # 181: Tomorrow: Argument in S. Dist. N.Y. Ct. — Lawsuit Challenging President’s Blocking of Critics on Twitter

Next Scheduled FAN # 183: Wednesday, March 22, 2018