“Until a few years ago, nobody would have believed that a first amendment attack on a Securities and Exchange Commission regulation would stand a chance.” — Nicholas Wolfson (1987)
“Are the securities laws just exempt from First Amendment challenges?” — Cydney Posner (2014)
For a long time, the Securities and Exchange Commission’s regulation of fraud, unfair dealing, and insider trading has been viewed as being largely beyond the pale of First Amendment protection, despite the invigoration of the commercial speech and compelled speech doctrines, among other tenets of free speech and due process law.
Enter Floyd Abrams and the cert. petition he recently filed in Romeril v. Securities and Exchange Commission. The free speech issue is whether it violates the First Amendment for the Securities and Exchange Commission to impose a requirement that any party with whom it settles must agree to a lifelong prior restraint barring any statement, however truthful and however expressed, that even suggests that any allegation in a Securities and Exchange Commission complaint is insupportable.
In his petition Mr. Abrams argues:
This petition seeks review of the U.S. Securities and Exchange Commission’s (‘SEC’) requirement that any settlement with it must include a lifetime restraint on speech, thus barring the settling defendant from ever even ‘indirectly’ leaving the ‘impression’ that ‘any allegation’ in the Commission’s original complaint is “without factual basis.’ Paragraph 11 of the “Consent” (the ‘SEC Restraint Order’) that the SEC requires all settling defendants to sign. The SEC asserts 17 C.F.R. § 202.5(e) mandates this ‘Gag Rule,’ but it is unmoored from well-established constitutional doctrine. No act of Congress authorizes such a sweeping restriction on freedom of speech. Nor could it. Of the hundreds of federal agencies, only the SEC and the Commodity Futures Trading Commission (“CFTC”) have adopted such a rule. The Department of Justice itself imposes no such requirement.
[ . . . ]
In the decades since the issuance of the Gag Rule in 1972, the SEC has settled thousands of cases with judgments containing the gag provisions. Among the silenced enforcement targets is the petitioner in this case, Barry D. Romeril, who settled with the SEC in 2003. As a result of the SEC’s gag policy, Mr. Romeril has been unable for over 18 years fully to discuss his case publicly, a sanction that, as a matter of wellestablished First Amendment law, could not have been imposed on someone convicted of treason or of murdering the highest-ranking federal officials.
‘A quintessential prior restraint’
In building his case, Mr. Abrams added:
The SEC-imposed gag on Mr. Romeril’s ability to criticize it unambiguously abridges his freedom of speech. It is a quintessential prior restraint, described by this Court as “the most serious and the least tolerable infringement on First Amendment rights.” Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 559 (1976). At the same time, the lifetime nature of the ban, its application to wholly truthful speech and its content- and viewpoint-discrimination rooted in the notion that the SEC can do no wrong violates the First Amendment for reasons independent of such constitutional vices’ embodiment in a prior restraint. The notion that a governmental body may wield its power to decide who is to be permitted to comment on its own behavior is at odds with the most deeply rooted First Amendment precepts.
Moreover, because the SEC Gag Orders at issue are by their terms non-negotiable, they are unconstitutional conditions in violation of the First Amendment. A private party’s supposed “consent” can hardly give the federal government a power of suppression denied it by the First Amendment.
- Margaret A. Little (argued case before 2nd Cir.), Kara M. Rollins, Mark S. Chenoweth (New Civil Liberties Alliance)
Amici in Second Circuit case
- Paul R. Niehaus, Kirsch & Niehaus PLLC, New York, New York, and Rodney A. Smolla, Wilmington, Delaware, for Amici Curiae Alan Garfield, Burt Neuborne, Clay Calvert, Rodney Smolla, Reason Foundation, The Goldwater Institute, The Institute for Justice, and The Pelican Institute for Public Policy, in support of Defendant-Appellant.
- Helgi C. Walker (Brian A. Richman, on the brief), Gibson, Dunn & Crutcher LLP, Washington, D.C., for Amicus Curiae The Competitive Enterprise Institute, in support of Defendant-Appellant.
- Brian Rosner, Carlton Fields, P.A., New York, New York, for Amicus Curiae Americans for Prosperity Foundation, in support of Defendant-Appellant.
- “SEC claims authority to subpoena Elon Musk about tweets,” Associated Press/The Free Speech Center (March 23)
SCOTUS: No First Amendment case. Re: a ‘purely verbal censure’ of an elected college trustee
The case is Houston Community College System v. Wilson. In an opinion by Justice Gorsuch, the Court ruled that
[E]lected bodies in this country have long exercised the power to censure their members. As early as colonial times, the power of assemblies to censure their members was assumed. And, as many examples show, Congress has censured Members not only for objectionable speech directed at fellow Members but also for comments to the media, public remarks disclosing confidential information, and conduct or speech thought damaging to the Nation. Censures have also proven common at the state and local level. In fact, no one before the Court has cited any evidence suggesting that a purely verbal censure analogous to Mr. Wilson’s has ever been widely considered offensive to the First Amendment.
[ . . . ]
What history suggests, the Court’s contemporary doctrine con- firms. A plaintiff like Mr. Wilson pursuing a First Amendment retaliation claim must show that the government took an “adverse action” in response to his speech that “would not have been taken absent the retaliatory motive.” Nieves v. Bartlett, 587 U. S. ___, ___. To distinguish material from immaterial adverse actions, lower courts have taken various approaches. But any fair assessment of the materiality of the Board’s conduct in this case must account for at least two things. First, Mr. Wilson was an elected official. Elected representatives are expected to shoulder a degree of criticism about their public service from their constituents and their peers—and to continue exercising their free speech rights when the criticism comes. Second, the only adverse action at issue before the Court is itself a form of speech from Mr. Wilson’s colleagues that concerns the conduct of public office. The First Amendment surely promises an elected representative like Mr. Wilson the right to speak freely on questions of government policy, but it cannot be used as a weapon to silence other representatives seeking to do the same. The censure at issue before us was a form of speech by elected representatives concerning the public conduct of another elected representative.
While Georgetown Law has yet to render a decision in the Ilya Shapiro controversy, the battle between cancel culture and free speech continues. “Will the woke students who screamed obscenities and physically confronted me face any discipline?”
I certainly agree that Mr. Shapiro was exposed to physically intimidating conduct (by a very small number of students) that should not be countenanced. But for the overwhelming majority, after the intermittent chanting and speaking, everyone quietly and peacefully left the room.
[ . . . ]
I am aware of the longstanding discontent of black and other students of color on this campus, and I understand their impulse not to stop speaking their message, at the top of their lungs if need be.
On the other hand, Hans Bader wrote: “It is absurd that Mr. Shapiro was put on administrative leave by Georgetown University for eight weeks and counting for a tweet criticizing President Biden’s race-based selection of a black woman for the Supreme Court.”
In a letter-to-the-editor in response to Professor Little’s letter, Mr. Shapiro wrote:
While it’s understandable that Rory Little wants to defend his students at UC Hastings (“Open Minds, Loud Voices and Cancel Culture,” Letters, March 28), he ends up twisted in logical knots. If an event that can’t be conducted because of incessant disruption doesn’t count as a cancellation, nothing does. It may well be that, “after the intermittent chanting and speaking, everyone quietly and peacefully left the room,” but that was only after I had departed—because the room’s lunch-hour reservation expired ahead of an afternoon class.
That’s the crux of the matter: This was not some speaker’s corner where opposing activists face off, but a space duly reserved by a student organization for an invited speaker (and faculty commentator) to discuss issues that are plainly germane to a law school’s mission.
Then there was a spate of other items in the news, including:
- “People ‘can’t deal with opposing views’,” Fox News (March 24)
- Sabrina Conza, “I want to go to law school, but I’m not excited for 3 years of illiberalism and controversy,” FIRE (March 28)
- Palge Cromley, “Campus groups host ‘Mob Rule’ panel on free speech and campus discourse,” The Daily Princetonian (March 28)
- “Law Students, Their Teachers and Our Future,” The Wall Street Journal (letter to the editor)
- Erwin Chemerinsky & Howard Gillman, “Free speech doesn’t mean hecklers get to shut down campus debate,” The Washington Post (March 24)
- Bernard Goldberg, “Free speech under attack — at two law schools,” The Hill (March 24)
- Editorial, “Yale Law Students for Censorship,” The Wall Street Journal (March 20)
→ Yesterday, Mr. Shapiro was in conversation with Professor Andrew Koppelman at the University of Michigan Law School. They were there to discuss “free speech on campus.” According to Mr. Shapiro: “There were no protestors, in part because the dean of students read a statement at the beginning reiterating the school’s free expression policy and that disrupters and obstructors would be subject to discipline.”
- “Special issue: Academic speech — Protected or perilous? Emerson Sykes, ‘Academic freedom for whom?’” — FAN 329.7 (March 7)
- David Lat, “Yale Law Dean Heather Gerken Speaks Out About The March 10 Protest,” Original Jurisdiction (March 29)
In a recent letter to Yale Law School students, Dean Heather Gerken wrote in part:
In accordance with the University’s free expression policy, which includes a three-warning protocol, those protesting exited the room after the first warning, and the event went forward. Had the protestors shut down the event, our course of action would have been straightforward—the offending students without question would have been subject to discipline. Although the students complied with University policies inside the event, several students engaged in rude and insulting behavior as the event began; a number made excessive noise in our hallways that interfered with several events taking place; and some refused to listen to our staff.
To which David Lat replied in part:
A few points. First, I’m curious about where one can find the three-warning protocol, since I can’t find it in the free-expression policy posted on the Yale University website or anywhere on the YLS website. (If anyone reading this happens to have a link to where this protocol can be found online, please email me or post in the comments.)
Second, while I appreciate Dean Gerken’s statement that a successful shutdown of the event (like what happened at UC Hastings) would have triggered discipline, Yale’s free-speech policy doesn’t require an event to be shut down entirely in order for a violation to occur. To the extent that Dean Gerken has created such a requirement, she has revised Yale University policy—and made it much easier for protesters to trample on free speech.
Here’s what the policy—which Dean Gerken never quotes from in her message, oddly enough—actually provides: (1) “a university event, activity, or its regular or essential operations may not be disrupted”; (2) protesters “may not interfere with a speaker’s ability to speak or attendees’ ability to attend, listen and hear”; and (3) “[s]itting in or otherwise occupying a building in a way that blocks access or otherwise interferes with university events or operations” is not permitted.
- Aaron Sibarium, “Yale Law School Rules Out Disciplinary Action for Students Who Disrupted Free Speech Event,” The Washington Free Beacon (March 28)
14 million dollars to George Floyd protesters
This from Colleen Slevin writing for the Associated Press:
DENVER (AP) — Jurors on March 25 found police used excessive force against protesters, violating their constitutional rights, during demonstrations over the killing of George Floyd two years ago, ordering the city to pay a total of $14 million in damages to a group of 12 who sued.
[ . . . ]
Lawyers involved believed it was the first trial in a lawsuit challenging officer tactics during the 2020 protests that erupted around the nation over the police killing of Floyd and other black people.
The protesters who sued were shot at or hit by everything from pepper spray to a Kevlar-bag filled with lead shot fired from a shotgun. Zach Packard, who was hit in the head by the shotgun blast and ended up in the intensive care unit, received the largest damage amount — $3 million.
Upcoming: Knight First Amendment Institute conference on ‘Lies, Free Speech, and the Law’
On April 8, 2022, the Knight Institute will host a symposium to explore how the law regulates or should regulate false and misleading speech. The symposium, titled “Lies, Free Speech, and the Law,” is being overseen by the Institute’s Senior Visiting Research Scholar Genevieve Lakier and will take place at Columbia University.
The symposium will focus on five themes that examine the connections between lies, freedom of speech (construed broadly), and the law. These are: 1) the sociological and constitutional status of false or misleading speech; 2) defining the category of lies; 3) structural regulation and the problem of lies; 4) government lies; and 5) the deregulation of disclosure.
Due to university restrictions, only Columbia University students, faculty, and staff will be allowed to attend in person. We encourage everyone else to please join us online. All panels will be live streamed. Please RSVP to receive links and updates about the program.
- RonNell Andersen Jones (University of Utah S.J. Quinney College of Law) & Sonja R. West (University of Georgia School of Law)
- Alan Chen (University of Denver Sturm College of Law)
- Adam M. Enders (University of Louisville) and Joseph Uscinski (University of Miami)
- Jamal Greene (Columbia Law School)
- Heidi Kitrosser (University of Minnesota Law School) Sam Lebovic (George Mason University)
- Artur Pericles Lima Monteiro (Yale Law School)
- Helen Norton (University of Colorado School of Law)
- Deborah Pearlstein (Cardozo Law School)
- Amanda Shanor (University of Pennsylvania Wharton School)
- Mark Tushnet (Harvard Law School)
- Eugene Volokh (UCLA School of Law)
- John Fabian Witt (Yale Law School)
Forthcoming article on protecting free speech on social media platforms
- Dawn Carla Nunziato, “Protecting Free Speech and Due Process Values on Dominant Social Media Platforms,” Hastings Law Journal (forthcoming 2022)
In recent years, dominant social media platforms like Facebook and Twitter have been increasingly perceived as engaging in discrimination against conservative and right-wing viewpoints – especially by conservatives themselves. Such concerns were exacerbated by Twitter and Facebook’s deplatforming of then-President Trump in response to the president’s tweets and posts leading up to and during the January 6 th insurrection. Trump’s deplatforming, coupled with the recent actions taken by the platforms in removing Covid- and election-related misinformation, led to cries of censorship by conservative and increased calls for regulation of the platforms. Supreme Court Justice Thomas took up this charge (in an opinion relating to a different controversy involving Trump’s Twitter practices) and suggested a regulatory path forward for lawmakers seeking to hold the platforms liable for alleged viewpoint discrimination against and censorship of conservative voices. Justice Thomas’s suggested playbook for regulation was adopted by several state and federal lawmakers, who have proposed a host of legislative measures designed to address these concerns.
In this Article, I examine the desirability and constitutionality of recent federal and state legislative initiatives that seek to provide remedies for these alleged ills—including the proposed federal DISCOURSE Act, the 21st Century FREE Speech Act, the PRO-SPEECH Act, and the PACT Act, as well as state laws like those enacted in Florida and Texas and introduced in every state in the country that seek to rein in the dominant platforms’ discretion exercised in content moderation decisions to prohibit them from engaging in viewpoint discrimination (whether human moderated or algorithmically implemented), and to impose notice, transparency and other due process-type obligations on these platforms. This Article analyzes the key elements of such proposed legislation in light of the obligations that the U.S. government historically has imposed on common carriers and broadcasters. This Article then examines the procedural dimensions of our free speech commitments and values and our commitments to due process, including those enshrined in the International Covenant on Civil and Political Rights (which was referenced by the Facebook Oversight Board in its review of Facebook’s suspension of Trump from its platform). These due process principles require that speech regulations be clear and precise, that those subject to regulation be provided clear notice of such regulations, that the regulations be enforced in a manner that is non-discriminatory and transparent, and that enforcement be subject to an opportunity to challenge—especially where the consequences of such enforcement are substantial.
This Article concludes with a favorable assessment of the desirability and constitutionality of certain aspects of proposed legislation that would require platforms like Facebook and Twitter to comply with certain principles of nondiscrimination and due process as recognized under the First Amendment, the Due Process Clause, and the International Covenant on Civil and Political Rights, and that would prohibit these platforms from engaging in certain types of viewpoint discrimination or speaker-based discrimination. This Article contends that, while the platforms should continue to enjoy the discretion to regulate many categories of speech that would otherwise be protected by the First Amendment (such as threats, non-obscene pornography, medical misinformation, etc.) and to moderate content and restrict speakers when in clear violation of their terms of service, the dominant platforms should not engage in blatant viewpoint or speaker-based discrimination and should accord their users certain due process type protections – including the right to receive meaningful advance notice of the platforms’ content guidelines and terms of service; clear notice when users’ speech is censored or otherwise regulated or when the speaker herself is de-platformed; information about what particular content guideline was allegedly violated; and a meaningful opportunity to challenge content moderation in cases where such moderation severely restricts their exercise of free speech.
Book review: ‘The United States of Anonymous’
The invention of moveable type is often credited with revolutionizing communication. Advances in cyberspace appear to be working similar transformations. Just as books and pamphlets can spread truth and falsehood and can enlighten or slander, so too can communications via the internet.
In “The United States of Anonymous: How the First Amendment Shaped Online Speech,“ Jeff Kosseff, a former journalist, a lawyer, and an associate professor in the Cyber Science Department of the U.S. Naval Academy, discusses such developments with a particular view toward anonymous and pseudo-anonymous (publications under a pen name) speech. This is familiar territory for Kosseff who in 2019 published “The Twenty-Six Words That Created the Internet,” examining how Section 230 of the Communication Decency Act shields online services from lawsuits based on user content.
[ . . . ]
Kosseff demonstrates that anonymous and pseudo-anonymous speech has long been an important part of American discourse, beginning with letters written in London in 1769 under the name of “Junius” (a pseudonym that has yet to be definitely identified), to John Dickinson’s Letters From a Federal Farmer, Thomas Paine’s Common Sense, and the publication of The Federalist (Alexander Hamilton, James Madison, and John Jay) under the name of Publius.
Internet platforms vary whether they permit anonymous posts and in how much anonymity they are willing to offer, but in criminal cases the government sometimes asks for such disclosures as do plaintiffs in civil cases.
So to Speak Podcast: ‘What Russians don’t know about the war in Ukraine’
The Russian government has purged independent media, banned protests, and shut down social media access. So, do Russians know the truth about the war in Ukraine?
Ksenia Turkova is a journalist from Russia who currently works for Voice of America. Before coming to the United States she worked for a number of Russian news outlets, including some that were shut down by the Russian government. She also spent time as a radio host in Ukraine.
In this episode of So to Speak: The Free Speech Podcast, Turkova shares her reporting on Russian censorship and the war in Ukraine, as well as some of her firsthand experiences as a reporter in the country.
- Eugene Volokh, “Police Officer Gets Critic Prosecuted for ‘Harassment,’ Based on Critical Online Posts,” The Volokh Conspiracy (March 29)
- George R. La Noue, “Time to Challenge Compelled Speech?,” Law & Liberty (March 29)
- “Study shows just 2% of Michigan students attend a university that respects free speech,” FIRE (March 29)
- Rob Miraldi, “Kingston demonstrations shine a spotlight on imperiled free speech,” Poughkeepsie Journal (March 28)
- “Judge: Racist threats not protected by First Amendment,” CBS8 (March 28)
- Eugene Volokh, “Colorado Supreme Court Strikes Down Electronic Harassment Ban,” The Volokh Conspiracy (March 28)
- Talia Barnes, “Dartmouth doubles down on rationale for canceling in-person Andy Ngo event, but the details still don’t add up,” FIRE (March 25)
- “Reporters Committee finds mixed record on Ketanji Brown Jackson’s FOIA-related opinions,” The Free Speech Center (March 24)
2021-2022 SCOTUS term: Free expression & related cases
- City of Austin, Texas v. Reagan National Advertising of Texas Inc.
- Federal Election Commission v. Ted Cruz for Senate
- Shurtleff v. Boston
- Kennedy v. Bremerton School District
- 303 Creative LLC v. Elenis
- Smith v. United States
- Lundergan v. United States
- Kelly v. Animal Legal Defense Fund
- Edgar et al. v. Haines
- Clear Channel Outdoor, LLC v. Raymond
- American Society of Journalists v. Bonta
- Arlene’s Flowers Inc. v. Washington (petition for rehearing)
- Green v. Pierce County
- Burns v. Town of Palm Beach
- Gilbert v. United States
- Roberson v. United States
- Woods v. Alaska State Employee Association
- Lamoureux v. Montana
- Asociación de Periodistas de Puerto Rico v. Commonwealth of Puerto Rico
- John K. MacIver Institute for Public Policy, Inc., et al. v. Evers
- Project Veritas Action Fund v. Rollins
- Troesch v. Chicago Teachers Union, et al.
- Dignity Health v. Minton
- Pace v. Baker-White
- Tah v. Global Witness Publishing, Inc.
- American Civil Liberties Union v. U.S.
- Frasier v. Evans (First Amendment and qualified immunity)
- Louisiana v. Hill
- Baisley v. International Association of Machinists and Aerospace Worker
- Crowe v. Oregon State Bar
- Boardman v. Inslee
- Pasadena Republican Club v. Western Justice Center, et al.