First Amendment News

First Amendment News 237: Joseph Blocher Takes Center Stage with Back-to-Back First Amendment Articles in Harvard and Yale Law Reviews

January 8, 2020

Remember this name (if you do not otherwise know it): Joseph Blocher. The Duke Law School professor is busy building his reputation as a modern-day, take-note free speech scholar with back-to-back articles in the two most prestigious legal journals:

The former Guido Calabresi law clerk is one of the co-authors of the merits brief in District of Columbia v. Heller, and author numerous articles, and a book on the Second Amendment. Beyond that, this scholar with a Calvinist work ethic has devoted the past 14 years to writing on free speech issues as well (see works listed below).

A Sketch of a Few of Blocher’s Ideas About “True Belief”

In his Harvard article Blocher engages in a search for free speech principles, noting along the way the failure of the marketplace of ideas principle to deliver truth or even some consensus about facts. At the same time, he flags the inadequacy of democracy or autonomy theories destined to succumb to the trappings of reliance on expert knowledge or some method for exposing falsehoods in order to improve our collective (albeit ideologically divided) lot. (See Collins & Skover, “The Guardians of Knowledge in the Modern State”) As Blocher correctly notes: “If we are living in ‘post-truth,’ then perhaps we need a post-truth First Amendment.”

How true, if only First Amendment scholars would give some serious and realist attention to that point! (Consider Lee McIntyre’s “Post-Truth,” a book written by a philosopher and social scientist).

So what to do? Well, Blocher says, start with moving away from “a single, over-arching free speech principle.” Okay. What next? Free speech principles need to look beyond the manipulation of legal precedents (as inevitable as that is) and consider “insights from other disciples such as “economics, political philosophy, and history.” Might one add a dollop of cultural realism (aka sociology) to the mix? (See e.g. here, here, & here). Against that backdrop, Blocher plays this conceptual hand: “[T]he lodestar is not truth—the central concern for the Holmesian approach to free speech—but knowledge.” (Aside: I wouldn’t place too much stock in the cynical old soldier’s commitment to the realization of truth.)

Here’s the fixer point: “[A]lthough there are deep divisions and ongoing debates about the definition and value of knowledge (these are the basic questions of epistemology, after all), philosophers since Plato have generally taken as their starting point a definition of knowledge as justified true belief (JTB). The JTB approach, though subject to caveats, improvements, and outright exceptions, provides a substantially different and much richer cognitive goal than truth alone.” (Note: Plato’s teacher was famous for knowing that he did not know. See e.g. Plato’s Apology, 21-D).

Information to the Conceptual Rescue?

Blocher:

People have access to more information—more truth propositions—than ever before, and may continue to believe passionately in the importance of truth. There are, of course, bitter disagreements about whether certain ideas are true. But the more fundamental disagreement is about which sources, practices, and institutions provide reliable or otherwise desirable information—people increasingly resent media sources that they think are misleading them, for example. This is a debate about valid justifications, not about whether true beliefs are important. If anything, we live in a post-knowledge era.

A few comments: (1) Note the use of the phrase “desirable information.” Information may be desirable but not reliable. Why employ the word “desirable” and how does that link up with justifications for knowledge?  (2) Let us pause for a moment: What does it mean to add the adjective “true” to the noun “belief”? For example, is saying one has a “true belief” in “Jesus as our savior” the same as saying one has a “true belief” in gravity?  The former bends more towards belief whereas the latter pulls more towards truth, at least linguistically speaking. (3) How does “true belief” differ from “true opinion”? And (4) how does one measure justifications in ways that do not mirror the way we measure truth? Are they not two limbs on the same analytical tree?

The “True Belief” Paradox: Is it One? 

True belief seems somewhat paradoxical. No? However that may be, Blocher correctly notes that “[l]aw often prioritizes justified true beliefs.” Indeed it does. But why? And how does that help to inform us about how to think about the First Amendment and free speech? That link, and what exactly informs it beyond black-letter law, is important.

Moving along, Blocher widens his theoretical lens in ways that invite informed reflection and response. In that regard, he both concedes the point and applauds the claim that a “knowledge-based approach will not rescue us from a post-truth era. But it can contribute to a richer and more productive discussion of what free speech is for.”

Much more could be said about this thoughtful and creative article. Part of what makes it so is that it gets us to think beyond the catchphrases that close so many minds hell-bent on either unjustifiably quartering free speech freedom or unreasonably expanding it. In sum: Blocher’s article merits a symposium, if only to invite some sorely needed new thoughts about the First Amendment and our justifications for valuing it.

And what of the good professor’s Yale Law Journal article on “Bans”? That too is a mind-opening article, but alas, I will save any comment on it for another day. Meanwhile, Professor Blocher has much more to say about the reason and reach of the First Amendment as evidenced by his other works listed below.

14 Other Blocher Works on the First Amendment & Freedom of Expression

  1. With Mark Tushnet & Alan Chen, “Free Speech Beyond Words: The Surprising Reach of the First Amendment” (NYU Press, 2017)
  2. “‘The Road I Can’t Help Travelling’: Holmes on Truth and Persuasion,” Seton Hall Law Review (forthcoming)
  3. New Problems for Subsidized Speech,” William & Mary Law Review (2015)
  4. Nonsense and the Freedom of Speech: What Meaning Means for the First Amendment,” Duke Law Journal (2014)
  5. Implementing First Amendment Institutionalism,” New England Law Review on Remand (2013)
  6. Public Discourse, Expert Knowledge, and the Press,” Washington Law Review (2012)
  7. Transforming Property Into Speech,” Legal Workshop (April 15, 2011)
  8. Government Property and Government Speech,” William & Mary Law Review (2011)
  9. Viewpoint Neutrality and Government Speech,” Boston College Law Review (2011)
  10. Categoricalism and Balancing in First and Second Amendment Analysis,” New York University Law Review (2009)
  11. Property and Speech in ‘Summum’,” Northwestern University Law Review Colloquy (2009)
  12. Institutions in the Marketplace of Ideas,” Duke Law Journal (2008)
  13. School Naming Rights and the First Amendment’s Perfect Storm,” Georgetown Law Journal (2007)
  14. Selling the Name on the Schoolhouse Gate: The First Amendment and the Sale of Public School Naming Rights,” School Law Bulletin (Fall 2006)

Cert. Petition: Liability for Protesting?

The case is Mckesson v. DoeFrom SCOTUSblog, the issue raised in the case is:

Whether the First Amendment and the Supreme Court’s decision in NAACP v. Claiborne Hardware Co. foreclose a state-law negligence action making a “leader” of a protest demonstration personally liable in damages for injuries inflicted by an unidentified person’s violent act there, when it is undisputed that the leader neither authorized, directed nor ratified the perpetrator’s act, nor engaged in or incited violence of any kind.

David T. Goldberg is the counsel of record for the Petitioner.

Related

  • Garrett Epps, “A Stunning Vote Reversal in a Controversial First Amendment Case,” The Atlantic (Dec. 18, 2019)
  • Doe v. McKesson (5th Cir., 2019) (“we hold that Officer Doe has not adequately alleged that Mckesson was vicariously liable for the conduct of the unknown assailant or that Mckesson entered into a civil conspiracy with the purpose of injuring Officer Doe. We do find, however, that Officer Doe adequately alleged that Mckesson is liable in negligence for organizing and leading the Baton Rouge demonstration to illegally occupy a highway. We further find that in this context the district court erred in dismissing the suit on First Amendment grounds. As such, Officer Doe has pleaded a claim for relief against DeRay Mckesson in his active complaint.”)

Cert. Petition: Mandatory Bar Membership Fees Challenged

In Jarchow v. State Bar of Wisconsin, the Court is asked to consider if a Wisconsin law compelling attorneys to be members of a bar association and fund its speech and advocacy causes violates the First Amendment. The lower courts upheld the law. David B. RivKin, Jr. is the counsel of record for the Petitioners.

Court documents:

Related

School District’s Social Media Policy Limits Parents’ Speech


From Kara Kenney at RTV6 Indianapolis:

Parents in Hendricks County, as well as the ACLU of Indiana, are raising concerns about a local school district’s policy that takes aim at what parents say on social media. . .

The North West Hendricks School Corporation’s “Parent Code of Conduct” says parents should not use social media to make rude or offensive comments toward school staff members or the school in general.

The policy also states parents shouldn’t use social media to “campaign against or fuel outrage against individual staff members, the school or policies implemented by the school or district.”

Parents who violate the policy can be removed from the school premises or banned from entering school grounds in the future, according to the policy.

Gag Policy for California State Employees: A First Amendment Violation?

This from Wes Venteicher writing in The Sacramento Bee:

Employees at a California tax agency started to suspect something was up when a compliance officer emailed everyone a reminder not talk with the media one morning in March.

Later that day, CBS Sacramento aired a story on new “RIOT” buttons that had been installed in elevators in the California Department of Tax and Fee Administration building, alarming some employees. The story included interviews with a few workers outside the department’s building at 450 N Street, which has become notorious for maintenance problems.

“The general message of the policy is that when staff receives inquiries from reporters, they should refer them to their supervisor or manager as those inquiries are handled by CDTFA by what is now called our External Affairs Division,” said an email from Program and Compliance Bureau Chief James Dahlen.

Yet those types of blanket restrictions on government employees’ speech are unconstitutional, according to a recently published paper from the Florida-based Brechner Center for Freedom of Information.

New From First Amendment Watch: “Media Law Expert George Freeman Talks About the Internet, Political Polarization, and Defamation Law”

In a new post, FAW staff writer Soraya Ferdman interviews media law expert George Freeman. Below is an excerpt from the post’s introduction of George Freeman:

George Freeman is the Executive Director of the Media Law Resource Center (MLRC), a nonprofit trade association that supports the media in legal matters. Previously, he worked as the chief First Amendment lawyer in the legal department of the New York Times for 31 years, offering legal advice to staffers. Under Freeman’s tenure, The Times did not lose or settle a single libel case.

George Freeman

The MLRC issues annual reports on the results of libel, privacy, and related trials involving  media organizations. Their database includes information from 650 trials that occurred between 1980 to 2017. According to MLRC, the average number of defamation lawsuits that have gone to trial per year is at an all time low: between four and five in recent years, compared to 27 in 1980.

However, MLRC data only reflects the number of defamation cases that go to trial—the data doesn’t include suits that are filed but are dismissed or settled out of court.

During 2019 alone, First Amendment Watch (FAW) reported on 18 defamation suits that were filed against media defendants, complicating any assumption that media companies have been freed from defamation threats (and FAW does not necessarily write about all such cases). A number of these cases involve internet speech, which has raised new legal questions such as whether a retweet is considered an endorsement, or whether statements made online are more likely to be interpreted as an opinion rather than a fact.

New From First Amendment Center at MTSU

New From The Volokh Conspiracy

New & Forthcoming Scholarly Articles

Latest Issue of First Amendment Law Review

First Amendment Salon with Stanley Fish 

Watch the November edition of the First Amendment Salon: “Professor Stanley Fish Interviewed by Lynn Oberlander

Unprecedented Podcast Interview with Anthony Elonis

This podcast (with comments by Nina Totenberg & John Elwood) is really quite exceptional! Check it out.

Description:

Anthony Elonis wrote a series of Facebook posts describing gory fantasies of revenge, often in the form of rap lyrics, against his estranged wife and others. He was later convicted of violating a federal law that prohibits such threats and was sentenced to more than three years in prison. Elonis claimed he was merely venting and using an established art form, just like Eminem. And that the First Amendment protects violent speech.

So to Speak Podcast: “McCarthyism and The Red Scare” 

From the episode description:

“Are you now or have you ever been a member of the Communist Party?”

[In this] episode of So to Speak: The Free Speech Podcast, we explore how America’s fear of communism in the early- to mid-20th century led to firings and blacklists in Hollywood, government, and higher education — and how these actions compromised America’s treasured principles of free speech, free conscience, free association, and due process of law.

We are joined by Ellen Schrecker, a former professor at Yeshiva University and the author of Many Are the Crimes: McCarthyism in America and No Ivory Tower: McCarthyism and the UniversitiesClick here for a transcript of the conversation.

Clear & Present Danger Podcast: “Expert Opinion – The History of Mass Surveillance, with Andres Marklund”


From the episode description:

In 2013, NSA contractor Edward Snowden sent shockwaves through the American government when he leaked information exposing a number of vast mass surveillance programs providing the U.S. Government and its allies access to global digital communication networks.

The harvesting of data by world governments has been aided by vast data collection by big tech companies like Google and Facebook, whose business models rely on knowing more about their users than their users know about themselves. The combination of state and corporate mass surveillance of the digital sphere has obvious consequences for both freedom of expression and information.

Private conversations are rarely ever truly private and the centralization of communication platforms allows both governments and corporations to censor and control the flow of information. This development has changed public perception of the digital age from one of unlimited freedom, promise, and possibilities to one of cynicism, fear, and paranoia.

But the age of mass surveillance was not ushered in with the internet. In fact, just as it is today, in its infancy, mass surveillance was dominated by the leading liberal democracy of the day: Great Britain laid the foundation for the practice of mass surveillance at the outbreak of World War I. And, as in the 21st century, the issues that drove the push for mass surveillance and censorship at scale were national security and fears of extremism, disinformation, and propaganda.

With us to discuss the history of mass surveillance and its consequences for freedom of expression and information today is Andreas Marklund, head of research at Copenhagen’s ENIGMA Museum of Communication.

Ken Paulson on Closing of the Newseum

“The closing is a major disappointment to so many who care deeply about freedom of the press.”

2019–2020 SCOTUS Term: Free Expression & Related Cases

Opinions or Judgments Handed Down

Cert. Granted

Pending Petitions

Petitions Denied

Last Scheduled FAN 

This article is part of First Amendment News, an editorially independent publication edited by Professor Ronald K. L. Collins and hosted by FIRE as part of our mission to educate the public about First Amendment issues. Opinions expressed are those of the article's author(s) and may not reflect the opinions of FIRE or of Professor Collins.