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William Blackstone Commentaries

First Amendment News 274: More on originalism and the First Amendment, enter Matthew Schafer

October 7, 2020

“First, defenders of a free press must collect historical evidence that draws Thomas’s thesis into question on its own originalist terms. Second, the merits of the methodology itself, the originalist approach, must be attacked at the same time.”

  — Matthew Schafer  (July 2020)

Cover of Criminal Dissent: Prosecutions under the Alien and Sedition Acts of 1798
Some seven months ago First Amendment News had a post titled “Living Originalism and Its Evolution — Books by Wendell Bird Paint New Picture of the History of Press, Speech Freedoms in America.” That post profiled Mr. Bird’s impressive and well-researched new book “The Revolution in Freedoms of Press and Speech: From Blackstone to the First Amendment and Fox’s Libel Act” (Oxford University Press 2020) and highlighted his equally impressive companion book titled “Criminal Dissent: Prosecutions under the Alien and Sedition Acts of 1798” (Harvard University Press, 2020). Both works took scholarly exception to Leonard Levy’s cramped view of the Press Clause and likewise to Blackstone’s confining view of it. By the same measure, in both books Mr. Bird was critical of the kind of originalist arguments advanced by Justices Antonin Scalia and Clarence Thomas concerning the speech and press clauses of the First Amendment.

Enter Matthew L. Schafer. As described in his bio, he is:

a media lawyer who currently serves as Assistant General Counsel, Litigation for ViacomCBS. In that role, he oversees federal and state litigation across ViacomCBS subsidiaries, focusing on content related claims, including defamation, copyright, invasion of privacy, and subpoenas for newsgathering material.

Schafer is also an adjunct professor at Fordham University Law School and has written much about free speech and related matters.

Since mid-July, Schafer has been busy publishing originalist articles on the Press Clause, this by way of four essays posted on Medium, which total just under 20,000 words. His four essays are:

  1. The Attack on N.Y. Times v. Sullivan
  2. Justice Thomas and the First Fake News Statute
  3. A Republic, If You Can Keep It” [Nb: This is also the title of Justice Gorsuch’s new book]
  4. William Blackstone Is The Most Powerful Person You’ve Never Heard Of
Matthew SchaferMatthew Schafer (Medium.com)

Here are seven points that provide a sketch of some of Mr. Schafer’s main arguments:

  1. What is the historical record?: “[I]t turns out that the historical record when it comes to the common law of libel is not nearly as unequivocal as Thomas would have us believe — in almost every way. Indeed, the historical record contains substantial evidence supporting the rule adopted in Sullivan.”
  2. Originalist methodology: Its accuracy & value: “There are at least two critiques with Thomas’ chosen interpretive device. Initially, there’s the question of whether it can be applied with any consistency, and, next, there’s the question of whether we even should try to do so. The answer to both questions is No.”
  3. No common law roots: Thomas’s reliance on scandalum magnatum (defined as “the slander of great men,” “used to designate words spoken in derogation of a peer, a judge, or other great state officials”) “suffers from [an] embarrassing weakness: scandalum magnatum is not a product of the common law.” Moreover, “there were substantive differences between the common law of defamation and scandalum magnatum.”
  4.  The central lesson of the Sedition Act: “[O]pposition to the Sedition Act, within a decade of the ratification of the First Amendment, is some of the best evidence of what the Founders meant when they spoke of freedom of the press and its relationship to the criticism of public officials — not some dusty statutory scheme from medieval England! As the Supreme Court correctly found in Sullivan, the opposition to the Sedition Act ‘first crystallized a national awareness of the central meaning of the First Amendment.'”
  5. Official Clarence Thomas portraitOfficial Clarence Thomas portrait
    Moving beyond the Common Law: “[T]he American common law of libel developed against a backdrop of principles of freedom of the press and self-government and, as a result, those principles changed it. Put differently, these cases show that freedom of the press diffused through the common law of libel rather than develop around it. . . . [E]arly American experience confirmed contrary precedent to that of England—especially when it came to criminal or civil libel actions attempting to punish government critics.”
  6. Blackstone: The founders’ familiarity with vs acceptance of his views: “Even if we accept that the Founders were familiar with the Commentaries — that familiarity should not be confused with acceptance. . . . Famously, Blackstone, in his Commentaries, maintained that ‘the liberty of the press . . . consists in laying no previous restraints upon publications.’ Nothing more. But that was hardly the only view as to the scope of the liberty of the press — especially in the early United States. . . . Thomas Jefferson, St. George Tucker, and James Wilson, each rejected Blackstone’s view. And while we focus on them, they were not alone. Scholars have concluded that early Americans disagreed “that freedom of the press consisted only of freedom from prior censorship.”
  7. Blackstone: Opponent of the American founding: “Blackstone hated the Colonists and the cause of independence. He hated republican sentiment. He rejected the idea that sovereignty resided, first, in the People. Why the Supreme Court treats him as the final arbiter of questions of history more than 200 years later defies understanding.

Invitation

Given what Wendell Bird and Matthew Schafer have written about originalism and the speech and press clauses, I invite scholarly responses to their arguments. If you are interested, please contact me and I would be pleased to discuss the matter.

Related

See also “New York Times v. Sullivan Revisited: A Reargument,” Media Law Resource Center virtual event (Oct. 5) (with Lee Levine, Ballard Spahr, and Dean and Professor of Law Rodney Smolla, Delaware Law School with comments from Mary-Rose Papandrea, UNC School of Law; Matthew Schafer, ViacomCBS Inc.)

Court hears Delaware judicial elections case: Carney v. Adams

News items & commentaries:

Court denies cert in four free speech cases

  1. Evans v. Sandy City, Utah (homeless expressive-conduct case)
  2. Reisman v. Associated Faculties of the University of Maine (public-sector labor union case)
  3. Austin v. Illinois (nonconsensual dissemination of non-obscene nude or sexually-oriented visual material case)
  4. Living Essentials, LLC v. Washington (commercial speech case)

Rhode Island vanity plate law likely violates First Amendment

According to an Associated Press report:

A Rhode Island law allowing the Division of Motor Vehicles to reject vanity license plates that are “offensive to good taste” likely violates the First Amendment, a federal judge ruled.

The judge issued a preliminary injunction Friday in support of a lawsuit challenging the constitutionality of the law, which gives the DMV administrator the authority to deny vanity plates based on whether he or she thinks they “might carry connotations offensive to good taste and decency.” . . .

Carroll, a Tesla owner, was ordered by the DMV to turn in his plate “FKGAS” or have his registration canceled after the division received a complaint about the plate.

Carroll said the plate was his daughter’s suggestion, intending a meaning of “fake gas” to refer to the electric car. He doesn’t contest, however, that the plate could also be perceived as sending a different message that included profanity; he was supportive of that one, too.

The division has approved over 41,000 vanity plates, denied dozens of others, and maintains a list of more than 1,000 prohibited license plate combinations. The suit noted the arbitrary nature of the list and the DMV’s decisions; the judge agreed.

Unassailable Ideas cover
New book on-campus speech

Open inquiry and engagement with a diverse range of views are long-cherished and central tenets of higher education and are pivotal to innovation and knowledge creation. Yet, free inquiry on American campuses is hampered by a climate that constrains teaching, research, and overall discourse.

In Unassailable Ideas, Ilana Redstone and John Villasenor examine the dominant belief system on American campuses, its uncompromising enforcement through social media, and the consequences for higher education. They argue that two trends in particular–the emergent role of social media in limiting academic research and knowledge discovery and a campus culture increasingly intolerant to diverse views and open inquiry–are fundamentally reshaping higher education. Redstone and Villasenor further identify and explain how three well-intentioned unwritten rules regarding identity define the current campus climate. They present myriad case studies illustrating the resulting impact on education, knowledge creation-and, increasingly the world beyond campus. They also provide a set of recommendations to build a new campus climate that would be more tolerant toward diverse perspectives and open inquiry.

An insightful analysis of the current state of academia, Unassailable Ideas highlights an environment in higher education that forecloses entire lines of research, entire discussions, and entire ways of conducting classroom teaching.

Related

Forthcoming scholarly article

Prof. Alfred Chueh-Chin YenProf. Alfred Chueh-Chin Yen

This Article offers a new account of copyright’s relationship to the First Amendment. Until now, discourse about copyright and the First Amendment appears focused on applying a single standard of review. The Supreme Court has effectively taken the position that courts need only apply rational basis First Amendment scrutiny to copyright law. Some scholars have disagreed, arguing that intermediate scrutiny should be applied to all of copyright. By contrast, this Article argues that the proper level of First Amendment scrutiny depends on the type of copyright provision under review. In particular, courts should apply strict scrutiny to the few portions of the Copyright Act that embody viewpoint-based regulation of speech, intermediate scrutiny to the more numerous provisions that employ content-based regulation of speech, and rational basis scrutiny to the Copyright Act’s content-neutral provisions.

This suggestion draws inspiration from recent Supreme Court decisions applying strict scrutiny to aspects of trademark law. These cases show that basic free speech principles apply to intellectual property, thereby raising doubt about the wisdom of applying only rational basis First Amendment scrutiny to copyright. The Article uses these principles and insights gained from copyright’s historical relationship to the FirstAmendment to construct a framework that gives courts the ability to curb the use of copyright as censorship or naked economic giveaway while preserving Congress’ ability to implement appropriately reasoned copyright policies that serve the public interest.

New So to Speak podcast 

In the new episode of So to Speak:

FIRE Senior Research Fellow Sean Stevens joins us to discuss the “2020 College Free Speech Rankings: What’s the Climate for Free Speech on America’s College Campuses?”

The rankings are based on the largest free speech survey of college students ever performed, which collected the views of 20,000 students. We discuss the best and worst colleges for free speech and other interesting data points from the survey: For example, 31% of students don’t believe President Donald Trump should be allowed on campus to share his views. And 22% said the same of former Vice President Joe Biden.

Two noted scholars join FIRE’s board

From the press release:

The Foundation for Individual Rights in Education is proud to announce that Columbia University Professor John McWhorter and Princeton University Professor Keith Whittington have joined its Board of Directors.

FIRE logo

“FIRE could not be more pleased to have Professors McWhorter and Whittington join the board,” said Anthony Dick, Chairman of FIRE’s Board of Directors. “They are as distinguished in their respective fields as they are committed to the principles of liberty that FIRE is sworn to defend.”

John McWhorter is Associate Professor of English and Comparative Literature at Columbia University, teaching linguistics, Western Civilization, and music history. He is a regular columnist on language matters and also race issues for Time and CNN, writes on language for The Atlantic, and hosts the Lexicon Valley podcast at Slate. He is the author of many books, including most recently “Words on the Move” and “Talking Back, Talking Black.” He has appeared regularly on Bloggingheads.TV since 2006.

In recent months, Professor McWhorter has heard from hundreds of academics concerned about the climate for free speech and academic freedom on their campuses. In September, he authored an essay for  The Atlantic entitled “Academics are Really, Really Worried about Their Freedom,” which digests some of these correspondences.

“I’m honored to be a part of this organization at a time when its actions and counsel are going to be integral to the very survival of post-Enlightenment inquiry and exchange in this country,” said McWhorter.

Keith E. Whittington is the William Nelson Cromwell Professor of Politics at Princeton University. He writes about American constitutional law, politics and history, and American political thought. His work has appeared in the Wall Street Journal, Washington Post, New York Times, and The Atlantic, among other outlets, and he is a regular contributor to the Volokh Conspiracy blog. He is the author of several books, including “Speak Freely: Why Universities Must Defend Free Speech”; “Repugnant Laws: Judicial Review of Acts of Congress from the Founding to the Present”; and “Constitutional Crises, Real and Imagined.”

“FIRE has been on the frontlines of the fight for free speech and academic freedom on American college campuses, and I have long admired their work,” said Whittington. “I look forward to working with them more closely and helping their mission however I can. Unfortunately, threats to freedom of thought and free inquiry have been coming fast and furious, from both the left and the right, and we will continue to need a strong defense of these foundational principles in the years ahead.”

Professors McWhorter and Whittington previously served on FIRE’s Advisory Council. On the Board of Directors, they will join Dick, Harvey Silverglate, Barbara Bishop, John Ellis, Joseph Maline, Marlene Mieske, and Virginia Postrel.

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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.