Since I will be out of the country for some time, FAN will not be posted again until Wednesday, May 22. Meanwhile, the folks over at First Amendment Watch will provide you all the free expression news that’s fit to post.
Words and images are how people are placed in hierarchies, how social stratification is made to seem inevitable and right, how feelings of inferiority and superiority are engendered, and how indifference to violence against those on the bottom is rationalized and normalized. Social supremacy is made, inside and between people, through making meanings. To unmake it, these meanings and their technologies have to be unmade.
— Catharine MacKinnon, Only Words (1993)
Gender equality demands equal opportunity to speak and be heard. Yet, in recent years, the clash between equality and free speech in the context of gender has intensified—in the media, the workplace, college campuses, and the political arena, both online and offline. The internet has given rise to novel First Amendment issues that particularly affect women, such as nonconsensual pornography, online harassment, and online privacy. On November 1–2, 2018, the Fordham Law Review brought together scholars and practicing lawyers from around the nation to address many of the pressing challenges facing feminists and free speech advocates today. The Symposium was a fitting topic to mark the occasion of 100 years of women at Fordham Law School.
Over twenty scholars, practitioners, and writers participated in the two-day conference, along with Sylvia A. Law, Elizabeth K. Dollard Professor of Law, Medicine, and Psychiatry Emerita of N.Y.U. School of Law, who delivered the Robert L. Levine Lecture. Conference panels considered campus speech issues, including trigger warnings, safe spaces, and hostile classrooms; pornography, including nonconsensual pornography (or “revenge porn”); being female online and how the internet affects women’s reputations, self-expression, and privacy; words, images, misogyny, and the First Amendment; and how gender representation in the media and politics impact political outcomes and reproductive rights.
Contributors & Titles
Danielle Keats Citron & Jonathon W. Penney, When Law Frees Us to Speak
Michele Goodwin & Mariah Lindsay, American Courts and the Sex Blind Spot: Legitimacy and Representation
- Mary Anne Franks, Fearless Speech, First Amendment Law Review (2019) (“From Philadelphia to Skokie to Charlottesville, the First Amendment has been interpreted to protect speech by white men that silences and endangers women and minorities. As free speech doctrine and practice become increasingly concerned with private as well as state action, free speech becomes even more of a monopoly and monoculture dominated by the interests of white men. The impoverished and elitist conception of free speech that governs current American legal theory and practice undermines all three values the First Amendment is meant to protect: autonomy, truth, and democracy.” )
- Geoffrey Stone, Kenneth Karst’s Equality as a Central Principle in the First Amendment, University of Chicago Law Review (2008)
- Nadine Strossen, Defending Pornography: Free Speech, Sex, and the Fight for Women’s Rights, NYU Press (2000)
- C. Edwin Baker, Of Course, More than Words, University of Chicago Law Review (1994) (reviewing C. MacKinnon’s Only Words)
- Dialogue: Floyd Abrams, Catharine MacKinnon, Anthony Lewis, The First Amendment, Under Fire From the Left, New York Times Magazine (March 13, 1994)
First Amendment Law Review Symposium (link here)
- Geoffrey R. Stone, Sex and the First Amendment: The Long and Winding History of Obscenity Law
- Clay Calvert, The FCC and Profane Language: The Lugubrious Legacy of a Moral Panic and a Grossly Offensive Definition that must be Jettisoned
- Claudia E. Haupt, Sex and the First Amendment Through the Lens of Professional Speech
- Kyla P. Garrett Wagner & Rachael L. Jones, Imbalance Between Speech & Health: How Unsubstantiated Health Claims in Secondary Effects Regulations of Sexually Oriented Businesses Threaten Free Speech
- Jud Campbell, Compelled Subsides and Original Meaning
- Eric Goldman, The Complicated Story of Fosta and Section 230
Headline: “Colorado lawmakers approve First Amendment bill to protect against frivolous lawsuits”
This from Associated Press:
Colorado’s Senate has passed a bill to protect citizens and news organizations from frivolous lawsuits intended to stifle First Amendment rights to free speech.
The bill creates an expedited process for a defendant to obtain a stay of such a lawsuit by arguing it’s motivated by his or her exercise of free speech or for exercising their right to petition government.
A higher court can dismiss such a case. The bill also allows defendants to collect court costs and attorney’s fees.
First Amendment Challenge to New Voter-Registration Law
- Deborah Fisher, Groups File First Amendment Lawsuit in Tennessee Over New Voter-Registration Law, First Amendment Encyclopedia (May 3, 2019)
A group of organizations who conduct voter-registration drives in Tennessee has filed a lawsuit against the state, alleging that a new law that imposes criminal and civil penalties is unconstitutional.
The groups allege in their lawsuit that the new law, signed by Gov. Bill Lee yesterday, “places onerous, unnecessary, burdensome, and unconstitutional obstacles upon on people who want to help others register to vote, subjects such people to harsh civil and criminal penalties based on vague and overbroad terms and standards, all of which violate the due process clause of the Fourteenth Amendment and have a chilling effect on the exercise of fundamental First Amendment rights.”
Student Speech Case: Calling for Principal To Be Fired
- Eugene Volokh, First Amendment Protects Nondisruptive Student Speech Calling for Principal To Be Fired, The Volokh Conspiracy (May 1, 2019) (K.B. v. De Kalb County School Dist.)
- School Newspaper Publishes Controversial Story At The Center Of Free Speech Debate, First Amendment Watch (May 6, 2019)
Cato Report: Regulating Social Media
- John Samples, Why the Government Should Not Regulate Content Moderation of Social Media, Cato Institute (April 9, 2019)
President Trump recently complained that Google searches are biased against Republicans and conservatives. Many conservatives argue that Facebook and Google are monopolies seeking to restrict conservative speech. In contrast, many on the left complain that large social media platforms fostered both Trump’s election in 2016 and violence in Charlottesville in 2017. Many on both sides believe that government should actively regulate the moderation of social media platforms to attain fairness, balance, or other values.
Yet American law and culture strongly circumscribe government power to regulate speech on the internet and elsewhere. Regulations of social media companies might either indirectly restrict individual speech or directly limit a right to curate an internet platform. The First Amendment offers strong protections against such restrictions. Congress has offered additional protections to tech companies by freeing them from most intermediary liability for speech that appears on their platforms. The U.S. Supreme Court has decided that private companies in general are not bound by the First Amendment.
However, some activists support new efforts by the government to regulate social media. Although some platforms are large and dominant, their market power can disintegrate, and alternatives are available for speakers excluded from a platform. The history of broadcast regulation shows that government regulation tends to support rather than mitigate monopolies.
Others worry that social media leads to “filter bubbles” that preclude democratic deliberation. But the evidence for filter bubbles is not strong, and few remedies exist that are compatible with the Constitution.
SCOTUSblog Interview with Bollinger & Stone
- Andrew Hamm, Ask the Authors: “Plain words, easily understood,” SCOTUSblog (5-3-19)
Forthcoming Book: The First Amendment in the Trump Era
- Timothy Zick, The First Amendment in the Trump Era, Oxford University Press (Oct. 28, 2019)
Regardless of how the presidency of Donald J. Trump ultimately concludes, a significant part of its legacy will relate to the First Amendment. The president has publicly attacked the institutional press and individual reporters, calling them the “enemy of the people.” He has proposed that flag burners be jailed and denaturalized, blocked critics from his Twitter page, communicated hateful and derogatory ideas, and defended the speech of white nationalists.
More than any other modern president, Trump has openly challenged fundamental First Amendment norms and principles relating to free speech and free press. These challenges have come at a time when the institutional press faces economic and other pressures that negatively affect their functions and legitimacy; political and other forms of polarization are on the rise; and protesters face diminished space and opportunities for exercising free speech rights.
This book catalogues and analyzes the various First Amendment conflicts that have occurred during the Trump presidency. It places these conflicts in historical context–as part of our current digitized and polarized era but also as part of a broader narrative concerning attacks on free speech and the press. We must understand both what is familiar in terms of the First Amendment concerns of the present era, but also what is distinctive about these concerns.
The Trump Era has once again reminded us of the need for a free and independent press, the need to protect robust and sometimes caustic criticism of public officials, and the importance of protest and dissent to effective self-government.
Four Other Forthcoming Books
- Aimee Edmondson, In Sullivan’s Shadow: The Use and Abuse of Libel Law during the Long Civil Rights Struggle, University of Massachusetts Press (Aug. 2, 2019)
- Robert Boyers, The Tyranny of Virtue: Identity, the Academy, and the Hunt for Political Heresies, Scribner (Sept. 24, 2019)
- Daxton Stewart, Media Law through Science Fiction: Do Androids Dream of Electric Free Speech?, Routledge (Oct. 2, 2019)
- Laura DeNardis, The Internet in Everything: Freedom and Security in a World with No Off Switch Yale University Press (Jan. 7, 2020)
Forthcoming Scholarly Article
- Edward A. Zelinsky, Applying the First Amendment to the Internal Revenue Code: Minnesota Voters Alliance and the Tax Law’s Regulation of Nonprofit Organizations’ Political Speech, Albany Law Review (forthcoming, 2019)
Five New Scholarly Articles
- Michele Cotton, Correcting the Generally Accepted but Unjustified Interpretation of the Free Speech Clause, First Amendment Law Review (2019)
- Jared Schroeder, Marketplace Theory in the Age of AI Communicators, First Amendment Law Review (2019)
- Alexandra Baruch Bachman, WTF? First Amendment Implications of Policing Profanity, First Amendment Law Review (2019)
- Adam Griffin, First Amendment Originalism: The Original Law and a Theory of Legal Change as Applied to the Freedom of the Press, First Amendment Law Review (2019)
- R. Randall Kelso, Clarifying Viewpoint Discrimination In Free Speech Doctrine, SSRN (April 2019)
“So to Speak” Podcast: More on Ferlinghetti & 1957 HOWL Trial
News, Editorials, Op-Eds, Etc.
- Jason Hancock, Missouri auditor: AG must decide if 1st Amendment can be used to redact public records, Kansas City Star (May 7, 2019)
- Kara Swisher, Trump Is Confused About Social Media. He’s Not Alone, New York Times (May 6, 2019)
- Adam Goldstein, Wake Forest: Investigating speech ‘not in conflict’ with promising freedom, FIRE (May 6, 2019)
- Ofer Raban, Is the Assange indictment a threat to the First Amendment?, Salon (May 4, 2019)
- Olivia Waxman, The Freedom of the Press Is Enshrined in the First Amendment—But What That Means Has Changed, Time (May 3, 2019)
- Geoffrey Fowler, Alexa has been eavesdropping on you this whole time, Washington Post (May 6, 2019)
- Jacob Mchangama, Freedom of Religion Doesn’t Cut It, Foreign Policy (May 1, 2019)
52 Years Ago Today: Redrup v. New York (1967)
- “Redrup”: Major Victory Over Censorship and Sexually Oriented Books, Today in Civil Liberties History
2018–2019 Term: Free Expression & Related Cases
Pending: Cert. Petitions
- Dahne v. Riche
- Klein v. Oregon Bureau of Labor and Industries
- Evergreen Freedom Foundation v. Washington
- 1A Auto, Inc. v. Sullivan
- In-and-Out Burger v. NLRB
- The Colorado Independent v. District Court
- Township of Millburn v. Palardy
- Uradnik v. Inter Faculty Organization
- Missouri Ethics Commission, et al. v. Free and Fair Election Fund
- Knox v. Pennsylvania
- Tate v. United States
- Abbott, et al. v. Pastides (reply brief here)
- Utah Republican Party v. Cox
- McKee v. Cosby, Jr. (Thomas, J., concurring in denial of cert. with opinion)
- Kennedy v. Bremerton School District
- Lair v. Motil
- Lair v. Mangan
- Berninger v. FCC (net neutrality)
- Montanans for Community Development v. Mangan
- Zimmerman v. Austin
- Township of Millburn v. Palardy
FOIA: Review Granted
Free Expression Related Cases: Review Granted
- Nieves v. Bartlett (probable cause, First Amendment, and retaliation)
Review Granted: Free Expression Related Cases
- Manhattan Community Access Corp. v. Halleck (transcript of oral arguments)
- Rucho v. Common Cause (standing and gerrymandering) (transcript of oral arguments)
Pending Free Expression Related Cases
- Woodhull Freedom Foundation v. United States (Art. III, standing)
Last Scheduled FAN