Over at Cato Unbound they have just posted an online exchange entitled “Free Speech in International Perspective.”
The lead essay is by Jacob Mchangama and is titled “How Censorship Crosses Borders.”
Jacob Mchangama describes what he terms a “cross-fertilization of censorship,” in which regimes both free and unfree are in the process of copying one another’s restrictions on expressive freedoms. More liberal countries still frequently restrict hate speech, while less liberal ones use those restrictions to justify still more restrictive acts. The world’s centuries-long march toward freedom of expression seems to have halted. Can it be restarted?
Mchangama’s essay drew a reply from Anthony Leaker and is titled Against “Free Speech”
Anthony Leaker characterizes the recent free speech “crisis” as mythical. It is the product of far-right and indeed fascist propaganda, and we can know that this is so by observing the purported victims in the “crisis:” They are right-wing, successful, and absolutely not being persecuted. Indeed, they dictate the terms of present-day debate, exactly as people like them have always done. In this way, Leaker denies that the United States has been, or is, a force for liberty at all. Political speech does well when it liberates the oppressed, but the type of speech under discussion here is nothing of the kind.
Related: FAN 192 — The Trend Continues: Forthcoming Book — Anthony Leaker, “Against Free Speech” (May 29, 2018)
Forthcoming
Two more essays are slated to follow:
- Jeremy Waldron, June 15th, and
- Jonathan Rauch, June 18th.
Knight Institute’s “Emerging Threats” online symposium
- Jack Goldsmith, Lead Essay: The Failure of Internet Freedom
Excerpt: “The United States’ internet freedom project is not just failing abroad. It is also failing at home. [T]he United States is increasingly engaged in forms of digital protectionism that it once decried. But both the commercial non-regulation principle and the anti-censorship principle are allowing real harms within the country’s borders as well. ‘[M]odern information networks and the technologies they support can be harnessed for good or for ill,’ Clinton acknowledged in her 2010 speech. The premise of the U.S. internet freedom agenda is that an open, unregulated internet is great at home on balance and thus should be exported abroad. This premise — built on an optimism about the impact of digital technologies on American public life — is now being called into question.”
“The fact that the U.S. internet freedom agenda is failing, however, does not necessarily mean that the larger project of internet freedom is failing. On the contrary, the growing detachment of this project from American commercial and ideological interests may suggest a new path forward. This is the glass-half-full perspective offered [in responses] by Nani Jansen Reventlow and Jonathan McCully, and David Kaye. While endorsing Goldsmith’s basic critique of U.S. policy, these leading international lawyers push back against the parochialism inherent in evaluating internet freedom in U.S.-centric terms.”
- David Kaye, The Limits of Supply-Side Internet Freedom
- Nani Jansen, Internet Freedom Without Imperialism
2017-2018 Term: First Amendment Free Expression Cases
Cert. Granted & Cases Argued
- Masterpiece Cakeshop v. Colorado Civil Rights Commission (argument: Dec. 5, 2017)
- Janus v. American Federation of State, Municipal and County Employees(argument: Feb. 26, 2018)
- Lozman v. City of Riviera Beach, Florida (argument: Feb. 27, 2018)
- Minnesota Voters Alliance v. Mansky (argument: Feb. 28, 2018)
- National Institute of Family and Life Advocates v. Becerra (argument: March 20, 2018)
- Benisek v. Lamone (argument: March 27, 2018)
Pending: Cert. Petitions
- Nationwide Biweekly Administration, Inc., et al v. Perez
- 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
- Flanigan’s Enterprise, Inc. v. City of Sandy Springs
- Contest Promotions, LLC., v. City & County of San Francisco
- Holmes v. Federal Election Commission
- Walker v. N.Y.C. Dep’t of Educ. et al.
- 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.)
Last Scheduled FAN # 193: Eight Free Expression Take Away Points from Masterpiece Cakeshop Case (# 8: Seven Justices Discuss Free Expression Claim)
Next Scheduled FAN # 195: Wednesday, June 20, 2018