“In life’s unforgiving arithmetic, we are the sum of our choices.” — George Will
“We must, as citizens, support and defend the right—indeed, the solemn obligation—to peacefully assemble and to be heard.” Those are the words of Mike Mullen, the 17th Chairman of the Joint Chiefs of Staff. They were written in response to the protests sparked by the murder of George Floyd and the public anger over police brutality.
Sensitive to just such concerns, The Knight Institute recently issued a press release expressing its concern over the “alarming number of arrests and attacks on journalists reporting on the unrest.” In that regard, it called on “all public officials at the local, state, and national levels to take immediate, affirmative steps to protect freedom of expression and the press.” Part of that press release included the following statement from Jameel Jaffer, Executive Director at the Knight First Amendment Institute at Columbia University:
“The country has watched in horror as protests over police killings of black men and women have been met with yet more police brutality and with blatant violations of the right of the press to cover the protests and to document the violence. Rather than address the pain and anger at the heart of these demonstrations, the president spent the last week leading his own assault on First Amendment freedoms—threatening to shut down social media, repeating a racially charged threat of violence leveled against previous protest movements, and accusing the media of fomenting unrest.
“History will judge the president harshly for his reaction, but it will also judge every elected and law enforcement official around the country for the actions they take—or refuse to take—at this critical moment to defend the press and Americans’ bedrock right to protest. The Knight Institute calls on all elected and law enforcement officials to support and promote the public’s right peaceably to assemble, and to guarantee reporters the access and freedom necessary to cover the protests.”
- “Journalists Face Threats and Physical Violence While Covering National Protests,” First Amendment Watch (June 2)
- Looking Back — 1965 Book Review by Abner Mikva: “Two Perspectives on Civil Rights,” University of Chicago Law Review. Reviewing:
- Harry Kalven, Jr., “The Negro and the First Amendment” (Ohio State University Press, 1965)
- Martin Oppen-Heimer & George Lakey, “A Manual for Direct Action: Strategy and Tactics for Civil Rights and All Other Non-violent Protest Movements” (Quadrangle Books, Inc., 1965)
Nora Benavidez on Trump’s animosity toward protesters
The First Amendment is no good if it is used to protect one side of the political spectrum but disregarded for the other. Protests in response to the killing of George Floyd have been met with aggressive police tactics, including spraying tear gas and rubber bullets, and sweeping up journalists, elected officials, and hundreds of protesters in major cities such as Houston, New York, and Chicago in mass arrests. The totality of the law-enforcement response to these protests stands in stark contrast to what officers did during anti-lockdown demonstrations in which conservative protesters armed with guns stormed state capitols and walked on public roadways: nothing.
- Jason Lormier & Anthony Cormier, “The DEA Has Been Given Permission To Investigate People Protesting George Floyd’s Death,” BuzzFeed (June 2)
- Samantha Maldonado, “New Jersey announces law enforcement reforms in wake of protests against police brutality,” Politico (June 2)
- Cynthia Littleton, “First Amendment Under Attack by Trump’s Moves, Minneapolis Arrests,” Variety (May 29)
Constitutional? Trump tweets Antifa to be tagged a terrorist organization
In a CNN story filed by Evan Perez and Jason Hoffman, the authors write:
tweeted Sunday that the United States will designate Antifa as a terrorist organization, even though the US government has no existing legal authority to label a wholly domestic group in the manner it currently designates foreign terrorist organizations.President Donald Trump
Current and former government officials say it would be unconstitutional for the US government to proscribe First Amendment-protected activity inside the US based on simple ideology. US law allows terrorist designations for foreign groups since belonging to those groups doesn’t enjoy the same protections.
Antifa, short for anti-fascists, describes a broad group of people whose political beliefs lean toward the left — often the far left — but do not conform with the Democratic Party platform.
Antifa positions can be hard to define, but many members support oppressed populations and protest the amassing of wealth by corporations and elites. Some employ radical or militant tactics to get out their messages. . .
In response to the President’s tweet, ACLU National Security Project Director Hina Shamsi said there is “no legal authority for designating a domestic group” as a terrorist organization.
“As this tweet demonstrates, terrorism is an inherently political label, easily abused and misused. There is no legal authority for designating a domestic group. Any such designation would raise significant due process and First Amendment concerns.”
Executive order concerning online speech
“In terms of presidential efforts to limit critical commentary about themselves, I think one would have to go back to the Sedition Act of 1798 – which made it illegal to say false things about the president and certain other public officials – to find an attack supposedly rooted in law by a president on any entity which comments or prints comments about public issues and public people.” — Floyd Abrams
This from First Amendment Watch:
On May 28th, President Donald Trump signed an executive order that aims to roll back legal protections for social media platforms. His order was immediately met with withering criticism from First Amendment experts.
The order directs the Federal Communications Commission (FCC) to rethink the scope of Section 230, a law that protects social media companies from lawsuits over the content published on their sites. Section 230 has come under attack by a number of critics recently, including the Department of Justice. They claim that the law allows social media platforms like Twitter and Facebook to skirt responsibility for harmful or misleading online content, and for discriminating against conservative writers.
In a pre-signing press conference, Trump said the move was to “defend free speech from one of the gravest dangers it has faced in American history.”
“A small handful of social media monopolies controls a vast portion of all public and private communications in the United States,” he claimed. “They’ve had unchecked power to censor, restrict, edit, shape, hide, alter, virtually any form of communication between private citizens and large public audiences.”
- Ken Paulson, “Twitter and Trump on a collision course with the truth,” The Free Speech Center (June 3)
- Related, Charles Duan & Jeffrey Westling, “Will Trump’s Executive Order Harm Online Speech? It Already Did,” Lawfare (June 10)
- David Greene & Aaron Mackey, “Trump Executive Order Misreads Key Law Promoting Free Expression Online and Violates the First Amendment” , Electric Frontier Foundation (May 28)
- Maggie Haberman & Kate Conger, “Trump Signs Executive Order on Social Media, Claiming to Protect ‘Free Speech’,” New York Times (May 28)
→ Video: “FCC commissioner Brendan Carr on free speech on social media,” CNBC (June 1) (Description: “Brendan Carr, commissioner of the FCC, joins ‘Squawk on the Street’ to discuss President Trump’s criticism of social media sites.”)
→ “Big tech needs to get out of the censorship business: Sen. Ted Cruz,” Fox Business (May 29)
Confederate statues removed in Virginia & Alabama
CNN’s Austen Bundy reports that:
Crews in historic Old Town Alexandria quickly removed a bronze statue of a Confederate soldier named “Appomattox” Tuesday morning.
The memorial was erected in 1889 to honor Confederate soldiers from the Virginia city and stands with its arms crossed and back to the north. It is one of many controversial Confederate monuments nationwide that has faced repeated demands for removal.
Alexandria’s Mayor, Justin Wilson, tweeted photos of the statue’s removal Tuesday morning saying, “Alexandria, like all great cities, is constantly changing and evolving.”
A spokesperson for the city told CNN in a statement that “the owner of the statue (United Daughters of the Confederacy) notified the City yesterday that they would remove the statue this morning.”
- Colin Dwyer, “Confederate Monument Being Removed After Birmingham Mayor Vows To ‘Finish The Job’,” NPR (June 2)
Senators ask Supreme Court to continue with live audio
This from Kalvis Golde over at SCOTUSblog:
In a press release today, Senators Chuck Grassley, R-Iowa, and Patrick Leahy, D-Vt., who are both members of the Senate Judiciary Committee, called on the Supreme Court to continue providing live audio of its oral arguments in the future, even after the coronavirus pandemic is over. The senators also requested that the court consider the further step of live video.
Grassley and Leahy cite two recent polls that demonstrate broad, bipartisan support for both continued live audio at the Supreme Court and the use of live video in all courthouses around the country. “Given this widespread support for access to our nation’s highest court – and the countless contributions it makes towards the civics education of the American public,” the senators said in their letter to Chief Justice John Roberts, “there is no reason why pro-transparency measures should end when the Court returns to its normal functions.”
Defendant’s rap lyrics can be used at his criminal trial
Over at The Free Speech Center, David L. Hudson filed this report:
Prosecutors can introduce a line from defendant’s rap song as evidence that he killed the victim, a Rhode Island Superior Court has ruled. The court found a “clear nexus” between the rap lyrics and the charged crime.
The case involves the prosecution of Jayquan Garlington for the murder of Darren Reagans in 2007. Garlington has a rap persona known as “Yung Jake.” In one of his songs, “Ain’t Da Same,” he raps the following line:
In 07 I was smoking on D
Prosecutors contend that this line from Garlington’s song means that in 2007 he killed Darren Reagans. They contend that Garlington was a member of the gang YNIC and that Reagans was a member of the rival gang Comstock.
Garlington, however, filed a motion in limine to exclude the admission of the rap lyrics. He argued that any probative value of the lyrics would be substantially outweighed by their unfair prejudice. He also argued that the admission of the rap lyrics would violate his free-speech rights under the First Amendment and the free-speech guarantee of the Rhode Island Constitution.
Judge Netti Vogel, however, determined that the lyrics constitute relevant evidence and that their admission would not violate free-speech protections in her May 21, 2020, opinion in State v. Garlington.
This coming Friday: Rod Smolla Zoom event
This from the Lewes Public Library in Delaware:
In the personal and frank Confessions of a Free Speech Lawyer, Rodney A. Smolla offers an insider’s view on the violent confrontations in Charlottesville during the “summer of hate.” Blending memoir, courtroom drama, and a consideration of the unhealed wound of racism in our society, he shines a light on the conflict between the value of free speech and the protection of civil rights.
Well before the tiki torches cast their ominous shadows across the nation, the city of Charlottesville sought to relocate the Unite the Right rally; Smolla was approached to represent the alt-right groups. Though he declined, he came to wonder what his history of advocacy had wrought. Feeling unsettlingly complicit, he joined the Charlottesville Task Force, and he realized that the events that transpired there had meaning and resonance far beyond a singular time and place. Why, he wonders, has one of our foundational rights created a land in which such tragic clashes happen all too frequently?
Rodney A. Smolla is Dean and Professor of Law at the Delaware Law School of Widener University and is the author of numerous books, including The Constitution Goes to College, Deliberate Intent, and Jerry Falwell v. Larry Flynt. He is a nationally known scholar and writer and has presented oral argument in state and federal courts across the country. Rodney will be interviewed by Ronald Collins, the former Harold S. Shefelman Scholar at the University of Washington School of Law.
Browseabout Books is selling copies of the book. Call-In orders are accepted daily from 10:00 AM – 4:00 PM at (302) 226-2665 or order books online.
NOTE: this meeting is being conducted through Zoom. You MUST REGISTER to receive instructions for joining the meeting. You will receive instructions by email the day before the meeting is scheduled.
Forthcoming book on George Bernard Shaw and censorship
- Bernard F. Dukore, “George Bernard Shaw and the Censors: Fights and Failures, Stage and Screen” (Palgrave Macmillan, Dec 9, 2020)
A fresh view of Shaw versus stage and screen censors, this book describes Shaw as fighter and failure, whose battles against censorship – of his plays and those of others, of his works for the screen and those of others – he sometimes won but usually lost. We forget usually, because ultimately he prevailed and because his witty reports of defeats are so buoyant, they seem to describe triumphs. We think of him as a celebrity, not an outsider; as a classic, not one of the avant-garde, of which Victorians and Edwardians were intolerant; as ahead of his time, not of it, when he was called “disgusting,” “immoral”, and degenerate.” Yet it took over three decades and a world war before British censors permitted a public performance of Mrs Warren’s Profession.
We remember him as an Academy Award winner for Pygmalion, not as an author whose dialogue censors required deletions for showings in the United States. Scrutinizing the powerful stage and cinema censorship in Britain and America, this book focuses on one of its most notable campaigners against them in the last century.
New scholarly article on the marketplace of ideas
- G. Michael Parsons, “Fighting for Attention: Democracy, Free Speech, and the Marketplace of Ideas,” Minnesota Law Review (2020)
I. The Modern Market Metaphor: Reckoning with Reality
A. Conceptual Problems
1. Competition for Individual Acceptance
2. Competition for Exposure Across Society
B. Empirical Problems
C. Historical Problems
II. Attentional Choice: A Theory of Competition for the Marketplace of Ideas
III. Earning Access to Attention: Revisiting the Role(s) of Expenditures in Campaign Finance Doctrine
A. Campaign Finance Under the “Laissez-Faire” Model
B. Campaign Finance Under the Attentional-Choice Model
1. Market Entry (Refining the “More Speech” Principle)
2. Market Competition (Refining the “Free Trade” Principle)
3. Anticompetitive Conduct
IV. Legislative Interventions: Promoting Competition and Preventing Market Interference
V. Power, Polarization, and Practical Consequences
- Mary-Rose Papandrea, “The Missing Marketplace of Ideas Theory,” Notre Dame Law Review (2019)
Freedom of press in the founding era — The story of Benjamin Bache
- Ronald Collins, “When Benjamin Franklin’s Grandson was Jailed for Criticizing President Adams — Part II,” First Amendment Watch (May 22)
- Andrea Sullivan, “What Should We Do If YouTube Censors on Behalf of the Chinese Communist Party?,“ Reason.com (June 2)
- Scott Nover, “Zuckerberg vs. His Staff: Facebook Employees Livid Over Refusal to Censor Trump,” Adweek (June 1)
- Eugene Volokh, “Libel Lawsuit Leads Court to Ban Even True Statements About Plaintiff’s ‘Sex Offender Status’,” The Volokh Conspiracy (June 1)
- Jonathan Adler, “Should the Supreme Court Reconsider Keller v. State Board of California?,” The Volokh Conspiracy (June 1)
- Mary Zoeller, “Faculty Interview: Snow College first to adopt ‘Chicago Statement’ in Utah,” FIRE (May 28)
- Trevor Burns, “California’s Anti‐Freelancer Law Violates the First Amendment,” The National Interest (June 10)
- Stepehen Lemons, “Lacey/Larkin Shred Feds’ Blueprint for Censorship in Asset Seizure Fight,” Front Page Confidential (May 27)
- Ed Nawotka, “Will China’s entry into U.S. publishing lead to censorship?,” Los Angles Times (May 27)
- Jim Turner, “First Amendment Foundation says toll road webinars should be stopped,” Orlando Sentinel (May 29)
- Sean Stevens, “Spirals of silence: Expressing a minority political view on some campuses is difficult,” FIRE (May 22)
- Tom Lyden, “Law professor falsely accused of rape, wins defamation case,” Fox 9 (KMSP) (May 20)
2019–2020 SCOTUS term: Free expression & related cases
Opinions or judgments handed down
- Thompson v. Hebdon (per curiam with Ginsburg, J., statement concurring in remand)
- United States v. Sineneng-Smith (decided on non-First Amendment grounds)
- United States v. Sineneng-Smith (argued Feb. 25) [soliciting unlawful action/overbreadth]
- Carney v. Adams (TBD) [standing / judicial elections]
- United States Agency for International Development v. Alliance for Open Society International Inc. (May 5) [federal funding/compelled speech]
- Barr v. American Association of Political Consultants, Inc. (May 6) [automated-call restriction]
- Chiafalo v. Washington (consolidated w/ Colorado Department of State v. Baca) (May 13) [elections]
- Fulton v. City of Philadelphia (TBD) [religious expression: free exercise & free speech claims]
- Hunt v. Board of Regents of the University of New Mexico
- Bright v. Thomas
- Kansas v. Boettger
- Living Essentials, LLC v. Washington
- Evans v. Sandy City, Utah
- Bruni v. City of Pittsburgh
- Waggy v. United States
- Austin v. Illinois
- Mckesson v. Doe
- Reisman v. Associated Faculties of the University of Maine
- Institute for Free Speech v. Becerra
- Americans for Prosperity Foundation v. Becerra
- Thomas More Law Center v. Becerra
- Facebook, Inc. v. Duguid
- Arlene’s Flowers Inc. v. Washington
- Price v. City of Chicago, Illinois
- Charter Communications, Inc. v. Gallion
- Jarchow v. State Bar of Wisconsin
- National Association for Gun Rights, Inc. v. Mangan
- Schmitt v. LaRose
- Vugo Inc. v. City of New York, New York
- Waronker v. Hempstead Union School District
- Archdiocese of Washington v. Washington Metropolitan Area Transit Authority
- Elster v. City of Seattle
- Doe 1 v. Federal Election Commission
- Fleck v. Wetch
- New York Republican State Committee v. Securities and Exchange Commission
- EMW Women’s Surgical Center v. Meier
- Carter v. Massachusetts
- Capital Associated Industries Inc. v. Stein
- National Review, Inc. v. Mann (Alito, J., dissenting from denial of cert.)
- Competitive Enterprise Institute v. Mann (Alito, J., dissenting from denial of cert.)
- Libertarian National Committee Inc. v. Federal Election Commission
- Miller v. Inslee
- Buchanan v. Alexander
- Lipschultz v. Charter Advanced Services, LLC
- Gatehouse Media New York Holdings Inc. v. New York
- National Association of Broadcasters v. Prometheus Radio Project (re Section 202(h) of the Telecommunications Act of 1996)
- Federal Communications Commission v. Prometheus Radio Project (re FCC cross-ownership restrictions)
- Uzuegbunam & Bradford v. Preczewski, et al (nominal damages and mootness in campus speech context)
First Amendment related: Cert. denied
- Force v. Facebook Inc. (interpretation of Section 230(c)(1))
- Olivas-Motta v. Barr (void for vagueness, “moral turpitude”)
- Dyroff v. Ultimate Software Group Inc. (interpretation of Section 230(c)(1))
Last scheduled FAN
- First Amendment News 256: “Federal district judge enjoins enforcement of Mass. debt collector calls regulation”