Do you have an important idea about academic freedom? Or some significant insight about “cancel culture” on campuses? Or maybe an idea for research based on Robert O’Neil’s “Free Speech in the College Community” (1997) has been in your mind for a while? Or perhaps your head is swimming with ideas after having read “Free Speech on Campus” (2017) by Erwin Chemerinsky and Howard Gillman? Or have you been meaning to write a scholarly article about Florida’s education department’s recent rejection of 54 mathematics textbooks owing to alleged references to critical race theory? If the answer to any of those questions is yes, the following press release should be of considerable interest to you.
FIRE is proud to announce that we are accepting proposals for our Free Inquiry Grant program. This program will support research that advances our understanding of free speech and academic freedom. In its first year, the program will offer $150,000 with a maximum grant size of $50,000 per grant.
Faculty, graduate students, and postdocs at accredited universities, as well as researchers at independent scholarly institutions like laboratories and think tanks, are eligible to apply. We are accepting proposals in the fields of economics, education, history, law, philosophy, political science, psychology, and sociology. Detailed eligibility information is available in the call for proposals.
→ Maximum grant size of $50,000 per grant.
This grant program is in partnership with FIRE’s Faculty Network. Members of the Faculty Network in the applicant’s field of study will review applications for relevance and to ensure grant-receiving projects meet the field’s standards for methodological rigor.
“Before any problem is solved it must be understood, and that’s why we are so thrilled that we have the opportunity to enable cutting-edge research to advance the state of knowledge on free expression. It’s especially gratifying that so many friends in our faculty network have stepped up to the plate to help,” says FIRE President and CEO Greg Lukianoff.
→ Applications are open now, and submissions for the 2022 grant program will be accepted until the deadline of October 1, 2022. Questions that are not answered in the call for proposals can be directed to firstname.lastname@example.org.
- Eugene Volokh, “Does the First Amendment Bar Public Schools from Removing Library Books Based on Their Viewpoints?” The Volokh Conspiracy (May 18)
- “Ga. students sue over blocked protest against rebel flag,” Associated Press (May 17)
- Tony Mauro, “How a 40-year-old Supreme Court Ruling May Quash the Book Banning Wave,” First Five, Perspective (Freedom Forum) (May 11)
- Laura Beltz, “Northwestern Oklahoma State University bans students from promoting ‘causes’ without administrative approval,” FIRE (May 5)
Disclosure: Though this blog is supported by FIRE, its content is determined solely by the editor — rklc
SCOTUS affirms First Amendment claim in post-election contributions case
Earlier this week the Supreme Court handed down its ruling in Federal Election Commission v. Ted Cruz for Senate. The vote was 6-3 with Chief Justice Roberts writing for the majority and Justice Elena Kagan writing for the dissent.
The case involved a First Amendment challenge to Section 304 of the Bipartisan Campaign Reform Act of 2002. That law prohibited a candidate’s campaign committee from repaying a candidate more than $250,000 in personal loans made to the campaign unless the repayment occurred within 20 days of the election and used pre-election contributions. As applied the Federal Election Commission barred Senator Ted Cruz (R-Texas) from recouping $10,000 of the $260,000 he had loaned to his Senate re-election campaign after the election. Given that, the questions presented in the case were:
1. Whether appellees have standing to challenge the statutory loan-repayment limit.
2. Whether the loan-repayment limit violates the Free Speech Clause of the First Amendment.
Held: Section 304 of the Bipartisan Campaign Reform Act of 2002 — which limits the amount of post-election contributions that may be used to repay a candidate who lends money to his own campaign — unconstitutionally burdens political speech and thus violates the First Amendment.
Chief Justice Roberts reasoned that “[b]y restricting the sources of funds that campaigns may use to repay candidate loans, Section 304 increases the risk that such loans will not be repaid,” which “in turn inhibits candidates from loaning money to their campaigns in the first place, burdening core speech.” Any attempt to limit political speech in the campaign context can only be justified to prevent quid pro quo corruption. In this case, however, there was no such showing.
Justice Kagan took exception: Post-election contributions “pose a special danger of corruption,” because a candidate “has a more-than-usual interest in obtaining the money (to replenish his personal finances), and is now in a position to give something in return.” Even if there was no actual quid pro quo corruption, she reasoned, “the public will predictably perceive corruption in post-election payments directly enriching an officeholder.”
→ Counsel of record for appellee: Charles J. Cooper
Professor Richard Hasen comments:
[I]t is worth pointing out what the opinion did not do: it did not change the standard of review that applies to campaign finance contribution limits, which remains somewhat less strict than the review of expenditure limits; it did not expressly state a new standard for the type of evidence necessary to show corruption or the appearance of corruption; and it did not otherwise mess with the Buckley framework. Given how strongly anti-campaign finance regulation this conservative Court supermajority is, I’m surprised this opinion wasn’t much worse. I don’t expect this opinion will have much influence on the general trajectory of Court review over campaign finance regulations (which is already bad enough).
Mchangama & Strossen: ‘Censorship won’t cure disinformation’
This from Greg Lukianoff (In a conversation featuring Nadine Strossen and Jacob Mchangama):
In May 2021, I published a list of “Answers to 12 Bad Anti-Free Speech Arguments” with our friends over at Areo. The great Nadine Strossen — former president of the ACLU from 1991 to 2008, and one of the foremost experts on freedom of speech alive today — saw the series and offered to provide her own answers to some important misconceptions about freedom of speech. For this entry, I asked Jacob Mchangama, author of the excellent book, “Free Speech: A History from Socrates to Social Media,” to provide his answer.
Earlier in the series:
- Part 1: Free speech does not equal violence
- Part 2: Free speech is for everyone
- Part 3: Hate speech laws backfire
- Part 4: Free speech is bigger than the First Amendment
- Part 5: You can shout ‘fire’ in a burning theater
- Part 6: Is free speech outdated?
- Part 7: Does free speech assume words are harmless?
- Part 8: Is free speech just a conservative talking point?
- Part 9: Free speech fosters cultural diversity
- Part 10: Why ‘civility’ should not trump free expression
- Part 11: ‘New’ justifications for censorship are never really new
- Part 12: Free speech isn’t free with a carveout for blasphemy
- Part 13: Does free speech lead inevitably to truth?
- Part 14: Shouting down speakers is mob censorship
- Part 15: Is counterspeech the best answer to bad speech?
- Part 16: Would censorship have stopped the rise of the Nazis?
New book: Niehoff & Sullivan on ‘core values’ and ‘current debates’
- Len Niehoff & E. Thomas Sullivan, “Free Speech: From Core Values to Current Debates” (Cambridge University Press, 2022)
Why do we protect free speech? What values does it serve? How has the Supreme Court interpreted the First Amendment? What has the Court gotten right and wrong? Why are current debates over free expression often so divisive? How can we do better?
In this succinct but comprehensive and scholarly book, authors Len Niehoff and Thomas Sullivan tackle these pressing questions. Free Speech: From Core Values to Current Debates traces the development and evolution of the free speech doctrine in the Supreme Court and explores how the Court – with varying levels of success – has applied that doctrinal framework to “hard cases” and current controversies, such as those involving hate speech, speech on the internet, speech on campus, and campaign finance regulation.
This is the perfect volume for anyone – student, general reader, or scholar – looking for an accessible overview of this critical topic.
— “Niehoff and Sullivan are sure-footed and lucid guides to a legal terrain of greater scope and variety than the basic idea of free speech might suggest. The book is skillfully organized, with just the right mix of case description, historical perspective, storytelling, critique, and explanatory synthesis. It fills a need, and fills it better than I would have thought possible.” Vincent Blasi, Corliss Lamont Professor of Civil Liberties, Columbia Law School
— “This book is a ‘must read’ for journalism and law students. This book helps answer a very important question today’s young people have seldom contemplated: ‘Why do we need a First Amendment anyway?’ Not only is the book ideal for journalism, law and government curricula, it is a wonderful example of public scholarship that will inspire thoughtful conversations about First Amendment rights.” Lucy Dalglish, Dean of the Philip Merrill College of Journalism, University of Maryland, and former newspaper reporter, editor, and Executive Director of the Reporters Committee for Freedom of the Press
— “With Free Speech: From Core Values to Current Debates, Niehoff and Sullivan have written an accessible and entertaining one-volume encyclopedia of the First Amendment’s speech clause. Written with authority, elegance and style, the book is an intelligent person’s guide to the historical background, legal precedents, and current controversies that drive the debate over how “free” speech should be.” Jane Kirtley, Silha Professor of Media Ethics and Law, Hubbard School of Journalism and Mass Communication, University of Minnesota.
Forthcoming book: Senator Whitehouse on ‘hidden money campaigns’ to influence the Supreme Court
- Sheldon Whitehouse, “The Scheme: How the Right Wing Used Dark Money to Capture the Supreme Court” (The New Press, Oct. 18)
A senior member of the Senate Judiciary Committee recounts how anonymous donors seized control of the U.S. Judiciary, including the Supreme Court
Following his book Captured on corporate capture of regulatory and government agencies, and his years of experience as a prosecutor, Senator Sheldon Whitehouse here turns his attention to the right-wing scheme to capture the courts, and how it influenced the Trump administration’s appointment of over 230 “business-friendly” judges, including the last three justices of the United States Supreme Court.
Whitehouse traces the motive to control the court system back to Lewis Powell’s notorious memo, which gave a road map for corporate influence to target the judiciary, and chronicles a hidden-money campaign using an armada of front groups and helped by the infamous Citizens UnitedSupreme Court decision. The scheme utilized the Federalist Society as an appointments turnstile, spent secret millions to support the nominees, orchestrated an “amicus brief” signaling apparatus, and propped up front-group litigants to “fast-lane” strategic test cases to the friendly justices.
Whitehouse finds the same small handful of right-wing billionaires and corporations running operations that he likens to “covert ops,” ultimately enticing the Senate to break rules, norms, and precedents to confirm wildly inappropriate nominees who would advance the anti- government agenda of a small number of corporate oligarchs.
The world got a glimpse of this story when the Senator’s presentation at the Amy Coney Barrett hearing went viral. Now, full of unique insights and inside stories, The Scheme pulls back the curtain on a powerful and hidden apparatus that has spent years trying to corrupt our politics, control our courts, and degrade our democracy.
- B. Jessie Hill, “Look Who’s Talking: Conscience, Complicity, and Compelled Speech,” Indiana Law Journal (2022)
Compelled speech claims, which arise under the Free Speech Clause, and complicity claims, which usually arise under the Religious Freedom Restoration Act (RFRA), are structurally similar. In each case, an individual claims that the government is forcing her to participate in a particular act that violates her religious or moral beliefs and imperatives, sending a false and undesired message to others and causing a form of spiritual or dignitary harm. It is therefore no surprise that compelled speech claims are often raised together with complicity claims in cases where religious individuals challenge the application of generally applicable laws to themselves.
In analyzing compelled speech claims, courts and commentators have often considered whether the purportedly compelled message is likely to be perceived as the speech of the objecting individual. In the complicity context, by contrast, courts and commentators generally have not considered whether the problematic act can reasonably be attributed to the individual claimant. Nor do they generally consider whether the individual claimant can take steps to disassociate from the act. This Article argues that the concepts of attribution and disassociation, if applied in the compelled speech context, should also be applied in the complicity context. It also attempts to demonstrate how an analysis of these concepts might proceed in complicity cases. Alternatively, if these concepts fit poorly in the complicity context, they should be rejected in the compelled speech context for the same reasons.
- Daniel Corxall, “Arming Goliath: Independent Craft Beer Is in Jeopardy at the Intersection of a First Amendment Circuit Split, the Twenty-First Amendment, and the Erosion of Tied House Laws,” Florida State University Law Review (2022)
Independent craft breweries are in serious trouble. Economic impacts from COVID-19 and pressure from large, multinational brewing conglomerates has forced many craft breweries to close over the last year. To make matters worse, a circuit split concerning commercial speech restrictions and the Supreme Court’s Central Hudson intermediate scrutiny analysis threatens to irreparably erode tied-house laws—the laws that keep independent craft breweries in business in the face of constant legal and illegal maneuvering from large manufacturers. An important tied-house law, shared by the federal government and most states, prohibits manufacturers from paying retailers for advertising space at retail outlets to prevent commercial bribery and undue influence that once dominated the beer market in the U.S. The Ninth Circuit has recently upheld such restrictions, but the Eighth Circuit in 2020 struck down Missouri’s restriction as a violation of the FirstAmendment. The Eighth Circuit’s view appears to be in-line with a Supreme Court trend towards heightened scrutiny for commercial speech regulations. None of this is good news for America’s craft breweries.
Should it become legal for large manufacturers to legally pay retailers for advertisements, those large manufacturers will flood retailers with cash to engage in legal pay-to-play that is currently illegal in every state. Craft breweries will be unable to compete with deep pockets that large manufacturers continuously show an eagerness to share with retailers in exchange for product placement. If the Supreme Court follows the current trend, a true bright spot for American small business and creativity will shrink or disappear. Based on the development of the Central Hudson intermediate scrutiny analysis, state legislatures and regulatory bodies must take concrete action to increase the odds that their tied-house laws will survive modern commercial speech scrutiny.
Craft beer law might seem to be an overly niche area, but it has tentacles extending to the First Amendment, the Twenty-first Amendment, intellectual property, administrative law, and several other areas of the law. This article is timely and the first to apply evolving commercial speech doctrine to the craft beer and alcoholic beverage industry in light of a circuit split and a Supreme Court seemingly willing to grant full First Amendment protection to commercial speech. America’s craft breweries hang in the balance.
- Eli Pales, “Video Games and the First Amendment,” Northwestern Journal of Technology and Intellectual Property (forthcoming 2022)
The video game industry is massive, with an annual revenue of $180 billion worldwide; $60 billion of that in America alone. For context, the industry’s size is greater than that of the movie, book, and music industries combined. Yet, despite this market dominance, the video game industry is relatively new. Only in the 2011 decision of Brown did the Supreme Court extend First Amendment protection to video games. However, the Court failed to define the scope of the game medium. As understood by an average person, a video game could be something as simple as Pac-Man or as complicated as a sophisticated $200 million recreation of the American West. If treated literally, the Supreme Court’s rule in Brown would require lower courts to treat all video games – regardless of their individual characteristics, sophistication, and visuals – as equally protected under the law. However, lower courts have not been following this Supreme Court decision by its word. Instead, judges have scrutinized how complicated a video game is, whether it has a narrative, if its characters are unique, and other characteristics that should be irrelevant.
This Article confronts the ways that lower courts discriminate against video games compared to established mediums and argues that this violates the Supreme Court mandate in Brown. The Article also provides a context and legal basis for constitutionally protecting video games that the Supreme Court failed to provide in its relatively simplistic decision. Ultimately, the Article argues that lower courts should take the Brown decision seriously and treat video games like any other protected medium.
TODAY — event on free speech and dissent
- American Writers Museum, “Flashpoints: Free Speech in American History, Culture & Society” (Wed., May 18: 7:30-9:00 PM ET)
At this panel, we ask just how “free” is free speech? How do we protect space for dissent? From “gag rules” prohibiting abolitionist views on the congressional floor to anarchists and communists being deported or imprisoned for sedition; and from obscenity laws to women’s right to birth control, Americans have often pushed the boundaries of politically acceptable speech, and faced robust resistance. Presented by PEN America.
This event looks at historical moments where strident expressions of political thought, widely perceived to be anti-democratic in their own place and time, provoked new strictures.
Moderator: Brett Gadsden
Panelists: Barbara Krauthamer, Claire Potter, and Geoffrey R. Stone
‘So to Speak’ podcast: Disney and Elon Musk
Does Disney have free speech rights? And did Florida violate the First Amendment when it punished the company for its political activism?
Elon Musk is buying Twitter. What should free speech advocates make of that?
Recurring guest and famed First Amendment scholar Robert Corn-Revere is here to break it all down for us. He’s a partner at the law firm Davis Wright-Tremaine, a member of FIRE’s Advisory Council, and the author of “The Mind of the Censor and the Eye of the Beholder: The First Amendment and the Censor’s Dilemma.”
- Alia Wong Romina & Ruiz-Goiriena, “Buffalo shooting reignites debate over critical race theory, US history education,” USA Today (May 18)
- Eugene Volokh, “Special Signage Requirement for ‘Trans-Inclusive’ Restrooms Unconstitutionally Compels Business’s Speech,” The Volokh Conspiracy (May 17)
- Greta Van Susteren, “I defend the First Amendment but don’t protest outside the Supreme Court justices’ homes,” USA Today (May 17)
- Charlotte Klein, “Don’t Hold Breath for a Supreme Court Leak Investigation,” Vanity Fair (May 12)
2021-2022 SCOTUS term: Free expression & related cases
- Federal Election Commission v. Ted Cruz for Senate (First Amendment claim affirmed)
- Shurtleff v. Boston (First Amendment claim affirmed)
- Houston Community College System v. Wilson (First Amendment claim denied)
- City of Austin, Texas v. Reagan National Advertising of Texas Inc. (First Amendment claim denied)
- 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
- Romeril v. Securities and Exchange Commission
- Marshall v. Supreme Court of the State of New Mexico
- Smith v. United States
- Edgar et al. v. Haines
- American Society of Journalists v. Bonta
First Amendment related petitions
- Arlene’s Flowers Inc. v. Washington (petition for rehearing)
- Lundergan v. United States
- Clear Channel Outdoor, LLC v. Raymond
- City of Cincinnati v. Lamar Advantage Co.
- Kelly v. Animal Legal Defense Fund
- 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.