Why would any United States company, or any company in a Western democracy, elect to promote the kind of Orwellian censorship system prevalent in China? That problem and the answer to it captured my attention recently when I listened to one of Jacob Mchangama’s Clear and Present Danger episodes in which he interviewed Megha Rajagopalan, who is a world correspondent for BuzzFeed News, and Yuan Yang, who is Financial Times’ Beijing correspondent.
- Episode 26 – Olso Freedom Forum Special with Megha Rajagopalan & Yuan Yang, Clear & Present Danger
In that eye-opening episode, Mchangama, Rajagopalan, and Yang explore how Western companies, which enjoy legal protection in their own countries, play a key role in exporting Chinese censorial technologies. They do this by helping to create the software that better enables the Chinese government to enforce its censorial system. Worse still, some of these companies also export such censorial systems to other countries, this by way of developing censorial systems tailored to their tyrannical agenda.
→ (Exchange begins at 24:50 minutes) Yuan Yang: “It is well documented that China has helped build some of Russia’s own internet controls, using the model of the Great Fire Wall in Russia. . . . [Also, China has pushed globally for the] concept of ‘cyber sovereignty,’ which, in the Chinese sense, basically means the ability to police your Internet borders in the same way you would police your physical borders. You decide who you let get to let in and you decide who you get to throw out.”
As Rajagopalan and Yang point out, some major American companies are developing and exporting censorial and surveillance technologies to various countries, including Latin American nations.
This is a fascinating podcast on a pressing problem that deserves greater public attention!
Liz Cheney Opposes House Bill Said to “Circumvent the First Amendment”
Over at TownHall Cortney O’Brien reports that Wyoming Republican Rep. Liz Cheney opposes the SHIELD ACT, which amends the Federal Election Campaign Act of 1971 to require “implementation of compliance and reporting systems by Federal campaigns to detect and report such acts, and for other purposes.”
→ Text of proposed law here.
Congresswoman Cheney described the SHIELD Act as an attempt to “circumvent the First Amendment.”
“Securing America’s elections is crucial to the functioning of our democratic process,” Cheney said in a statement. “Instead of working to achieve this fundamental priority, the legislation that Democrats brought to the floor this evening is a thinly veiled attempt to control political speech in the name of national security. By giving the federal government the authority to define what constitutes ‘legitimate’ news and forcing Americans who wish to engage in political speech to navigate burdensome bureaucratic obstacles, this bill is a clear violation of our First Amendment right to free speech. . . .”
→ Andrew Blake, McConnell Slams Election-Security Bill as ‘Transparent Attack on the First Amendment’, Washington Times (Oct. 23, 2019)
Cert Anxiety: National Review Defamation Case Awaits Review in High Court
Under Philadelphia Newspapers, Inc. v. Hepps (1986), and Milkovich v. Lorain Journal Co. (1990), a plaintiff seeking to impose defamation liability for a statement on a matter of public concern must prove that the statement is false, and thus cannot sue unless the statement contains a “provably false” factual connotation. The questions presented in this case are:
1. Is the question whether a statement contains a “provably false” factual connotation a question of law for the court (as most federal circuit courts hold), or is that a question of fact for the jury when the statement is ambiguous (as many state high courts hold)?
2. Does the First Amendment permit defamation liability for expressing a subjective opinion about a matter of scientific or political controversy, such as characterizing a statistical model about climate change as “deceptive” and calling its creation a form of “scientific misconduct”?
As previously noted, it’s been almost 15 years since the Court heard its last defamation case — Tory v. Cochran (2005). Even then the Court did not get to the merits of the case, which means that the last such case was actually Masson v. New Yorker Magazine, Inc. (1991) — that places the mark at 28 years. In the interim, Justice Antonin Scalia cast doubt on the soundness of New York Times Co. v. Sullivan (1964). More recently, Justice Clarence Thomas took a conceptual swipe at the landmark defamation case. That said, Justice Brett Kavanaugh seems comfortable with the opinion — some say he has “heartily embraced” its rule and rational.
→ Jack Fowler, Time to Mann Up, National Review (Oct. 8, 2019)
You’ll forgive the wordplay, but the hard fact is this: We begin National Review’s 2019 Fall webathon against the backdrop of America’s most critical free-speech drama — Mann v. National Review. It’s our battle, yes, but it’s very much yours too, because the consequences of a courtroom defeat will be serious (an understatement if there ever was one) for all Americans. Hence we turn to you again for your financial support, to help us underwrite these critical legal efforts, on our behalf and yours, and also to help NR’s broader task of pouring unrelenting conservative fire on reinvigorated socialism, its full-throated advocates, and the apostles of Alinsky who prowl the world, seeking the ruin of souls and of America as our founders envisioned it. . . .
“Whether the Supreme Court takes the case or it proceeds to trial in the D.C. court, there will be significant financial costs — above and beyond what our insurers bear — to NR. This being a mutual fight, we ask our readers, and any and all conservatives, and any and all believers in a vigorous First Amendment, to donate to our 2019 Fall webathon.
19 Amici Support of Cert Grant in Disclosure Case
The case is Americans for Prosperity Foundation v. Becerra. The issue raised is: “Whether the exacting scrutiny the Court has long required of laws that abridge the freedoms of speech and association outside the election context—as called for by NAACP v. Alabama ex rel. Patterson (1958), and its progeny—can be satisfied absent any showing that a blanket governmental demand for the individual identities and addresses of major donors to private nonprofit organizations is narrowly tailored to an asserted law-enforcement interest.”
→ Counsel: Derek L. Shaffer (Counsel of Record), William A. Burck, Jonathan G. Cooper & Kathleen Sullivan.
→ Ninth Circuit opinion.
Dave Chappelle Defends Comedy in Receiving Mark Twain Prize for American Humor
In an op-ed appearing in the Washington Examiner, Madeline Fry writes:
For every Twitter user arguing that free speech doesn’t include hate speech, Dave Chappelle has a response.
When he began his latest stand-up routine, Chappelle immediately took aim at his own audience, mocking listeners’ inability to handle offense.
“If you do anything wrong in your life, duh, and I find out about it, I’m gonna try to take everything away from you, and I don’t care when I find out. Could be today, tomorrow, 15, 20 years from now. If I find out, you’re f—ing-duh-finished,” he said, imitating the luminaries of cancel culture. “That’s what the audience sounds like to me.”
Media outlets and public figures criticized Chappelle for his Netflix special Sticks & Stones, which placed an irreverent lens over seemingly every hot-button issue in America, from transgenderism to abortion. His comedy seemed targeted to offend as if to dare audiences to tell him to shut up.
The point of the stand-up was clear: If bad people don’t have the right to free speech, neither does Chappelle, and neither do the rest of us.
Chappelle knows he’s been offending people his whole career, so when he accepted the Mark Twain Prize for American Humor on Sunday, it was fitting that he would take the opportunity to defend free speech.
We all have a right to say what we want, even comedians who he says are “very racist.”
→ YouTube clip here.
→ Elizabeth Blair, ‘The Best Part Of The First Amendment’: Dave Chappelle Accepts Mark Twain Prize, NPR (Oct. 28, 2019)
New Survey: Speech Restrictions Are Popular
Jacob Sullum over at Reason reports:
The First Amendment is unpopular. . . which is why we need the First Amendment. A recent survey commissioned by the Campaign for Free Speech underlines that point, finding that most Americans support viewpoint-based censorship, suppression of “hurtful or offensive” speech “in universities or on social media,” government “action against newspapers and TV stations” that print or air “biased, inflammatory, or false” content, and revising the First Amendment, which “goes too far in allowing hate speech,” to “reflect the cultural norms of today.”
That last position was endorsed by just 51 percent of respondents, compared to 42 percent who disagreed and 7 percent who had no opinion. But 57 percent favored legal penalties for wayward news organizations, 61 percent supported censorship of “hurtful or offensive” speech in certain contexts, and 63 percent said the government should restrict the speech of racists, neo-Nazis, radical Islamists, Holocaust deniers, anti-vaccine activists, and/or climate change skeptics.
Upcoming UNC Law Conference: The First Amendment, Local News, & Democracy
Next month the University of North Carolina Law School will host a major conference titled “Fostering an Informed Society: The Role of the First Amendment in Strengthening Local News and Democracy.”
On November 8-9, the UNC Center for Media Law and Policy will be joining with the First Amendment Law Review and Center for Information, Technology, and Public Life (CITAP) to present a symposium and summit focused on fostering an informed society. This two-day conference at the UNC School of Law and UNC Hussman School of Journalism and Media will examine the role of the First Amendment in creating an informed society and explore legal and policy interventions that support the creation and dissemination of information that meets the needs of American democracy. The interdisciplinary event will bring together a wide range of media professionals and scholars, including experts on the First Amendment’s speech and press clauses, media business models, antitrust law, FCC’s media ownership rules, net neutrality, intellectual property, and journalism, as well as others whose work deals with media business and First Amendment issues.
November 8, 2019
- Leonard Downie Jr., Weil Family Professor of Journalism at the Cronkite School at Arizona State University
- Robert Kaiser, former managing editor at The Washington Post
Panel 1: The First Amendment’s Structural Role in Our Democracy
- Moderator: Bill Marshall, William Rand Kenan, Jr. Distinguished Professor of Law at UNC School of Law.
- David Ardia, UNC School of Law
- Jerome Barron, George Washington University Law School
- Amy Gajda, Tulane University Law School
- Gregory Magarian, Washington University in St. Louis School of Law
Panel 2: The First Amendment and the Declining Fourth Estate
- Moderator: Wendy Scott, Associate Dean for Academic Success and Professor of Law at Elon Law.
- Chris Meazell, Wake Forest School of Law
- Dawn Nunziato, George Washington Law School
- Jonathan Peters, Grady College of Journalism & Mass Communication at the University of Georgia
- Jared Schroeder, Southern Methodist University
Panel 3: The First Amendment, Antitrust, and Competition Policy
- Moderator: David Ardia, Reef C. Ivey II Excellence Fund Term Professor of Law and faculty co-director of the UNC Center for Media Law and Policy.
- Adam Candeub, Michigan State University College of Law
- Andrew Gavil, Howard University School of Law
- Robert Picard, Senior Research Fellow at Reuters Institute, University of Oxford
- Maurice Stucke, University of Tennessee College of Law
November 9, 2019
Thwarting the Growth of News Deserts: Strengthening Local News and Democracy
This invitation-only summit/workshop will address the potential legal and policy responses to the decline of local news reporting, the growth of news deserts, and the rise of mis/disinformation online. Many of the panelists from the first day’s symposium will be attending the summit. They will be joined by media executives, policymakers, economists, social scientists, lawyers, and others with expertise in journalism, media economics, media business models, antitrust law, FCC policy, intellectual property, and constitutional law.
The second day is a partnership between the UNC Center for Media Law and Policy, UNC Center for Innovation and Sustainability in Local Media, and Center for Information, Technology, and Public Life (CITAP), and is being co-led by Philip Napoli, James R. Shepley Professor of Public Policy at the Sanford School of Public Policy at Duke University.
Forthcoming Book by Ashutosh Bhagwat
- Ashutosh Bhagwat, “Our Democratic First Amendment” (Cambridge University Press, June 30, 2020). Abstract:
The First Amendment to the US Constitution protects free speech, freedom of the press, freedom of association and assembly, and the right to petition the government. Why did the Framers protect these particular rights? What role were these rights intended to play in our democracy? And what force do they retain in today’s world? In this highly readable account, Ashutosh Bhagwat explores the answers to these questions. The first part of the book looks at the history of the First Amendment, early political conflicts over its meaning, and the lessons to be learned from those events about the nature of our system of government.
The second part applies those lessons to our modern, fractious democracy as it has evolved in the age of the Internet and social media. Now as then, the key to maintaining that democracy, it turns out, is an active citizenry that fully embraces the First Amendment.
New Book: “The Case Against Free Speech”
- P. E. Moskowitz, “The Case Against Free Speech: The First Amendment, Fascism, and the Future of Dissent” (Bold Type Books, 2019). Abstract:
A hard-hitting expose that shines a light on the powerful conservative forces that have waged a multi-decade battle to hijack the meaning of free speech–and how we can reclaim it.
There’s a critical debate taking place over one of our most treasured rights: free speech. We argue about whether it’s at risk, whether college students fear it, whether neo-Nazis deserve it, and whether the government is adequately upholding it.
But as P. E. Moskowitz provocatively shows in The Case Against Free Speech, the term has been defined and redefined to suit those in power, and in recent years, it has been captured by the Right to push their agenda. What’s more, our investment in the First Amendment obscures an uncomfortable truth: free speech is impossible in an unequal society where a few corporations and the ultra-wealthy bankroll political movements, millions of voters are disenfranchised, and our government routinely silences critics of racism and capitalism.
Weaving together history and reporting from Charlottesville, Skokie, Standing Rock, and the college campuses where student protests made national headlines, Moskowitz argues that these flash points reveal more about the state of our democracy than they do about who is allowed to say what.
Our current definition of free speech replicates power while dissuading dissent, but a new ideal is emerging. In this forcefully argued, necessary corrective, Moskowitz makes the case for speech as a tool–for exposing the truth, demanding equality, and fighting for all our civil liberties.
→ John Donahue podcast interview with P. E. Moskowitz for WAMC (Oct. 29, 2019)
G. Edward White on False Speech
- G. Edward White, Falsity and the First Amendment, Southern Methodist University Law Review (2019)
Kendrick on Miami Herald v. Tornillo
- Leslie Kendrick, Miami Herald v. Tornillo: Freedom of Speech for Whom?, Painting Constitutional Law (forthcoming). Abstract:
This piece is part of a forthcoming volume entitled Painting Constitutional Law, which pairs artist Xavier Cortada’s series of paintings, “May It Please the Court,” with commentary on each case represented in the series. Cortada’s painting The Miami Herald Publishing Company v. Tornillo depicts a pair of hands clutching a crumpled newspaper. The reader is otherwise invisible to us, hidden behind the newspaper that occupies the canvas. The newspaper pages are in full, dazzling color, and they are covered with mouths—bright red lips, wagging tongues, caught midsentence, talking all at once. The effect is that of a colorful cacophony. Whose mouths are these? Are they speaking as one, or in many different voices?
This visual depiction of Miami Herald v. Tornillo gets to the heart of the case. Whose voices get to speak in the newspaper? Who decides that question? Should the media represent a diversity of voices and viewpoints? Or is media access controlled by media owners? Tornillo asked the Supreme Court to decide these questions as a matter of First Amendment law. In doing so, the Court confronted two different visions of the FirstAmendment: one based in equality, which mandated media access for multiple voices, and one based in liberty, which protected the media from interference, including access by third parties. Rarely has the Supreme Court faced such a stark choice between First Amendment paradigms, and rarely has it stated its view of the First Amendment as clearly. How the issue came to the Court, and what the Court said about it, are stories of constitutional and media history. They also involve two larger-than-life Florida figures, Pat Tornillo and the Miami Herald. Without them, this particular issue may never have come to the Supreme Court, at least not in this particularly stark way.
Forthcoming Scholarly Articles
- Leslie Kendrick, The Book Has Two Faces: Trevor Ross’s Writing in Public: Literature and the Liberty of the Press in Eighteenth Century Britain, Critical Analysis of Law: An International & Interdisciplinary Law Review (forthcoming 2019)
- Lori Ringhand, First Amendment (Un)Exceptionalism: A Comparative Taxonomy of Campaign Finance Reform Proposals in the US and UK, Ohio State Law Journal (forthcoming 2019)
- Marc Walkow, Born Perfect: Assessing Free Speech Challenges to Sexual Orientation Conversion Therapy Bans, SSRN (May 2019)
New Documentary Series on Hate & Another on “(Dis)Honesty”
Executive produced by filmmaking heavyweights Alex Gibney and Steven Spielberg and directed by Geeta Gandbhir and Sam Pollard (Emmy winners for When The Levees Broke: A Requiem in Four Acts), Why We Hate explores one of humanity’s most primal and destructive emotions – hate. At the heart of this timely series is the notion that if people begin to understand their own minds, they can find ways to work against hate and keep it from spreading.
Episode 1: Origins
Episode 2: Tribalism
Episode 3: Tools & Tactics
Episode 4: Extremism
“Behind the Scenes”
- (Dis)Honesty: The Truth About Lies, Vimeo (Salty Features, 2019)
Salman Rushdie Speaks at FIRE’s 20th Anniversary Celebration
It was a remarkable evening and Salman Rushdie’s remarks were quite poignant as delivered at FIRE’s 20th anniversary celebration in New York City. Here’s hoping that those remarks are published and/or posted.
More News, Editorial, & Op-Eds
- Grant Strobl, First Amendment Protects Students’ Trump Flag, Detroit News (Oct. 28, 2019)
- Nick Givas, Minnesota GOP Chairwoman Accuses Minneapolis Mayor of Stifling First Amendment Ahead of Trump Rally, Fox News (Oct. 10, 2019)
2019–2020 SCOTUS Term: Free Expression & Related Cases
- Americans for Prosperity Foundation v. Becerra
- New York Republican State Committee v. Securities and Exchange Commission
- Capital Associated Industries Inc. v. Stein
- Libertarian National Committee Inc. v. Federal Election Commission
- Carney v. Adams
- Archdiocese of Washington v. Washington Metropolitan Area Transit Authority
- United States Agency for International Development v. Alliance for Open Society International Inc.
- Carter v. Massachusetts
- Thompson v. Hebdon
- Price v. City of Chicago, Illinois
- National Review, Inc. v. Mann
- Charter Communications Inc. v. National Association of African American-Owned Media
- Doe 1 v. Federal Election Commission (motion to file cert. petition with sealed filing granted)
- Miller v. Inslee
- Buchanan v. Alexander
- Lipschultz v. Charter Advanced Services, LLC (free speech related)
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