First Amendment News

Bazelon emily

First Amendment News 276: Abrams, Strossen and Glasser respond to Bazelon NYT magazine article 

October 28, 2020

In the last issue of FAN, I posted several excerpts from Emily Bazelon’s New York Times Magazine article titled “Free Speech in an Age of Disinformation.” Thereafter, Ms. Bazelon was interviewed by Dave Davies on NPR in a piece entitled “Unfettered Free Speech Is A Threat To Democracy, Journalist Says.”

The Bazelon thesis drew a response from Charles C.W. Cook in a piece in the National Review titled “The Censors Will Never Give Up” (Oct. 15). See also Timothy P. Carney, “Our speech police are dirty cops,” Washington Examiner (Oct. 16).

Now enter Floyd Abrams, Nadine Strossen, and Ira Glasser, whose comments to FAN are set out below:

Floyd Abrams:

I was disheartened by the piece which seemed to me to adopt, almost as if the conclusions were both obvious and incontrovertible, a view of the First Amendment which ignores the ‘no law’ articulation in it.

So, too, Nadine Strossen voiced her dissent, which is set out below:

Nadine StrossenNadine Strossen

I was disappointed and surprised by Emily Bazelon’s NYT piece, and didn’t find it persuasive or even new. Rather, it recycled the same timeworn arguments that have always been leveled against controversial speech and new media, throughout history. Nonetheless,  those arguments now (as always) have commanded great public and political support, across the ideological spectrum, and therefore it is important to have the chance to examine and respond to them with — admittedly — the same timeworn counterarguments. To my mind, the anti-censorship arguments are timeworn precisely because they continue to stand the test of time through evolving factual circumstances, and when weighed against each latest iteration of the anti-free-speech arguments in the new factual circumstances.

Most importantly, as is typical of free speech critiques, Bazelon’s piece focuses on the potential harm of speech — a point that, to the best of my knowledge, no one disputes. In contrast, it does not grapple with the demonstrable harm of vesting government officials and/or powerful media companies with censorial power over speech that is currently constitutionally protected. (I add the last phrase to underscore an important fact that is often overlooked or downplayed, as in this piece: that, while First Amendment law affords strong protection to speech, that protection is far from absolute; speech that is the most likely to cause harm is already subject to regulation.)

The pertinent questions, for public policy purposes, must go beyond whether certain constitutionally protected speech might do harm. Rather, the operative questions are whether any particular regulation of the designated speech would materially reduce any potential harm the speech might cause, and whether such regulation would actually do more harm than good. The historical and current evidence — which I continue to study intensively — continues to convince me that even the most well-intended speech regulations (that go beyond current constitutional bounds) are at best ineffective, at worst counterproductive.

I don’t have time to elaborate further now, but I hope that FAN might host a forum on point.

Likewise, Ira Glasser voiced his own objections, which are set out below:

Ira GlasserIra Glasser

Every new technology, from the printing press to radio, television and the internet, has resulted in new challenges to free speech principles, and people who thought those principles should be compromised.

Whatever one thinks about Emily Bazelon’s attempt to untangle those challenges in the context of today’s technologies, her otherwise comprehensive article omitted two key points and quoted one scholar’s historically inaccurate claim:

Omission 1:  In discussing the impact of the Supreme Court’s decision in Citizens United, and its effect on “corporate” speech, the article implies, as most liberals mistakenly assume, that the corporate speech restricted by the McCain Feingold law was the speech of mega-business corporations like Exxon or J.P. Morgan Chase.

In fact, the law also restricted the speech of corporations like the American Civil Liberties Union and Planned Parenthood, while not restricting the speech of “media” corporations like the New York Times and Fox News and Breitbart.

Had Citizens United not struck down these restrictions, Fox News would have been left free to demonize Planned Parenthood or the ACLU while the latter would have been legally restricted in its ability to respond. Why “progressives” would favor such an outcome remains a mystery.

Omission 2: There is always bad speech, speech we would be better off without. But different people have different ideas about which speech is bad enough to restrict. So whenever the utility of speech restrictions is discussed, the only important question is who gets to decide?  And for any law regulating speech, the answer is: the government. That often means people like Joe McCarthy, Richard Nixon, Rudolph Giuliani or Donald Trump; it virtually never means the advocates for social justice or the vulnerable minorities for whom they advocate. Why any vulnerable minority or social justice advocate would want to pass laws that gave Donald Trump the legal power to decide whose speech to restrict is a puzzlement.

If hate speech codes had been in force on college campuses in the 1960s, Malcolm X, not Klan leaders, would have been their most frequent target. Minorities who favored such speech codes weren’t ever going to be the ones deciding how and against whom to apply them.

Discussing speech restrictions abstractly, without reference to who will have the power to use them is profoundly naive.

Finally, one factual correction: with reference to democracy, the article quotes the chair of the European Digital Media Observatory, Miguel Poiares Maduro, as saying that “The Nazis … were originally elected.” This is a common belief, but not true: Hitler’s party never won a majority, not even in 1932. The Nazis were in fact outvoted by their various opponents. But since no party had a majority, Hindenburg as President appointed Hitler Chancellor because he thought he could use him to unwind the Weimar Republic. What followed was government violence: street thugs were given government power; and political opponents were arrested and imprisoned.

The Nazi hegemony did not result from a democratic vote, nor from excessive protections of free speech. There was no First Amendment in Germany and, as it turned out, no durable democracy either.

Related 

Lincoln Project threatened with libel lawsuit

First Amendment Watch logo
Ivanka Trump and Jared Kushner are demanding that the Lincoln Project, an anti-Trump conservative group, take down two billboard advertisements in Times Square, New York.

In a letter sent on October 23rd, Marc Kasowitz, the lawyer representing the couple, called the advertisements “false, malicious, and defamatory,” and threatened to sue the group for libel if they don’t take them down.

One billboard features an edited photo of Ivanka Trump smiling next to the total number of COVID deaths in New York and the United States. The second includes a photo of Kushner along with a quote from a Vanity Fair article that was attributed him by an anonymous source: “[New Yorkers] are going to suffer and that’s their problem.” Underneath the quote is a line of body bags.

“Of course, Mr. Kushner never made any such statement, Ms. Trump never made any such gesture, and the Lincoln Project’s representations that they did are an outrageous and shameful libel. If these billboard ads are not immediately removed, we will sue you for what will doubtless be enormous compensatory and punitive damages,” Kasowitz warned in his letter.

The Lincoln Project quickly dismissed the threats in an email sent to Ms. Trump and Kushner on October 24th. In the email, the group’s lawyers cite the U.S. Supreme Court’s decision in New York Times v. Sullivan (1964), the landmark ruling that guaranteed the First Amendment right to criticize public officials.

Related

A federal judge ruled on Tuesday that President Trump can be personally sued for defamation in connection with his denial while in office of a decades-old rape allegation.

The judge, Lewis A. Kaplan of Federal District Court in Manhattan, rejected the Justice Department’s attempt to step into the case and defend the president. His ruling means that, for the moment, a lawsuit by the writer E. Jean Carroll can move forward against Mr. Trump, in his capacity as a private citizen.

Ms. Carroll has accused Mr. Trump of raping her in a department store dressing room in the 1990s. Her lawsuit claims he harmed her reputation when he denied the attack last year and branded her a liar… .

Related

Government files reply brief in Trump v. First Amendment Institute

Earlier this month the Solicitor General’s office filed its reply brief in Trump v. First Amendment Institute. Below are a few excerpts from the government’s summary of its position:

Knight First Amendment Institute
The decision below holds that, in blocking users from his personal social media account, President Trump was exercising the power of the United States government and therefore violated the Constitution. The court of appeals based that holding on its discovery of a novel First Amendment right for citizens to interact directly with a government official’s personal social-media account through their own preferred accounts when the official uses his account to announce, among other things, official actions and policies. Respondents do not dispute that the constitutionality of the President’s conduct is squarely presented for this Court’s review. Nor do they dispute that the issues presented here are proliferating in cases around the country. Instead, respondents’ primary argument for denying certiorari is simply that the decision below “correctly applied well-settled precedent.”

Respondents are flat wrong that there is nothing to see here as a matter of constitutional principle. As the dissent from the denial of rehearing observed, the panel “extend[ed] the First Amendment to restrict the personal social-media activity of public officials” by misapplying three separate constitutional doctrines. Pet. App. 108a, 110a-117a. Most fundamentally, the decision below muddies the distinction between the personal actions of government officials and the actions of the state, which this Court has repeatedly warned against. Certiorari is warranted to correct the court of appeals’ constitutional errors and the resulting infringement of the right of the President and other officials to retain the control over their personal social- media accounts that all other individuals possess.

Mauro on Amy Coney Barrett’s views of the First Amendment

Tony MauroTony Mauro

Barrett was asked on Oct. 14 by Sen. Ben Sasse (R-Neb.) to name the five freedoms embodied in the First Amendment during her Supreme Court confirmation hearing, but could not recall “petition.” That was not the only time a senator asked for her views about issues related to the First Amendment.

Sen. Amy Klobuchar (D-Minn.) also asked Barrett whether the 1964 ruling that protects a free press from much libel litigation — New York Times Co. v. Sullivan — should be overturned and whether reporters should be shielded from having to reveal their sources.

“We need Supreme Court justices who understand the importance of protecting the right of journalists,” said Klobuchar, the daughter of a Minnesota journalist.

Barrett sidestepped Klobuchar’s questions, as she did with many others during her lengthy confirmation hearings.

Those two interactions with Barrett did not shed much light on her knowledge or enthusiasm about the First Amendment. Apart from her numerous controversial speeches and articles as a law professor, the only other source of that information may come from the 79 opinions she wrote and decisions she joined during her three years as a judge on the U.S. Court of Appeals for the Seventh Circuit.

But even there, the information is sparse. The Reporters Committee for Freedom of the Press, which has researched the First Amendment views of Supreme Court nominees for decades, found slim pickings. “That record is relatively light,” the committee’s analysis of Barrett’s opinions stated. “Judge Barrett has joined very few published opinions addressing First Amendment issues and has written fewer.”

As for Barrett’s Seventh Circuit decisions touching on the First Amendment’s religion clauses, a Washington Post commentary by two law professors concluded that “in her short time on the bench, Barrett has not written extensively on religious freedom.”

Yet if she is confirmed — and that appears to be certain — she may face an important religious freedom case almost immediately. On Nov. 4, the Supreme Court will hear arguments in Fulton v. City of Philadelphia, a dispute over Philadelphia’s decision to exclude Catholic Social Services from the city’s foster care system because the Catholic agency would not allow same-sex couples to become foster parents. The agency views this is as a form of religious discrimination.

Mauro thereafter goes on to highlight the following 7th Circuit cases in which then-Judge Barrett participated:

  1. Price v. City of Chicago
  2. Lett v. City of Chicago
  3. Illinois Republican Party v. J.B. Pritzker, Governor of Illinois
  4. Grussgott v. Milwaukee Jewish Day School, Inc.

The originalist nomineeGetting to all of the five freedoms

Sen. Ben Sasse (R-Neb.) accidentally stumped Amy Coney Barrett during her confirmation hearing on Wednesday afternoon when he asked President Trump’s Supreme Court nominee to “reflect a little bit on the glories of the First Amendment” by naming “the five freedoms” it enumerates.

“Speech, religion, press, assembly,” she answered, counting them off with her right hand. “I don’t know. What am I missing?”

“Redress or protest,” Sasse answered, referring to what the Bill of Rights describes as the right “to petition the Government for a redress of grievances.”

Barrett, who has taught law at Notre Dame for two decades and spent three years as a judge on the 7th Circuit, was good-natured about her brain freeze. “Sometimes softballs turn out not to be softballs,” she said later, referring to Sasse’s question.

In tough times: Famed Strand Bookstore seeks public’s help

Strand book club logo

For months, the Strand bookstore in downtown Manhattan, from its fiction stacks to its cookbook section to its rare books, has been nearly deserted. But on Sunday, half an hour before the store was scheduled to open, about a dozen people lined up in the cool fall breeze, waiting to get inside.

They had come in response to a plea from the store’s owner, Nancy Bass Wyden, who announced on social media Friday that its revenue was down nearly 70 percent from last year and that the business had become unsustainable. “I’m going to pull out all the stops to keep sharing our mutual love of the printed word,” she wrote. “But for the first time in the Strand’s 93-year history, we need to mobilize the community to buy from us so we can keep our doors open until there is a vaccine.”

Lukianoff & Weiss on ‘censorship gravity’

Greg LukianoffGreg Lukianoff

Key Concept — Censorship gravity: The tendency of psychological, cultural, and political forces to pull societies back towards more closed societies and censorship. Stands for the premise that free societies are unusual and hard to maintain, regression to the mean is regression to closed societies.

In the two-season masterpiece Fleabag, the main character says something that I will never forget. She has a breakdown in which she laments the terror of freedom itself. (Why is she in the confessional talking to a priest so frankly? Well, just watch the show and make sure you stick with it through the first few episodes.)

Ryne WeissRyne Weiss

We Americans are so used to lazily thinking of freedom as a “good,” that we forget to remember why it would need to be a value in the first place. If it was our natural, most basic craving, we wouldn’t need the layers of protections in our constitutions, our laws, and in (hopefully) our culture. Freedom would just be considered a fundamental aspect of any normal human society.

But it is very much not, as the great cofounder of FIRE Alan Charles Kors pointed out to me once. Someone had asked him to review the introduction to a book on freedom of speech that claimed, “Since the dawn of civilization man has yearned to be free.”

As Alan pointed out, “Yes, but that’s only because the rest of the human beings wanted to keep him oppressed, subdued, or even to enslave him!” We’re taught about freedom in elementary school, and we recite what we learned as rotely as the alphabet, and just as uncritically. We don’t give a lot of mindshare to the idea that we’d be in serious trouble if someone could tell us all the right choices to make; if someone could promise safety, security, certainty in the future, some part of us would really love that.

I certainly see that in myself. I’m always looking for expert opinions to tell me what to do on any number of things, sometimes excessively so, even for things I would probably be able to figure out on my own. Which brings me, probably somewhat surprisingly, to Noom. Noom is a subscription diet app that tracks your activity and what you eat, and gives you personally-tailored recommendations to help you lose weight.

New book on philosophy of protest

Prof. Clayton BohnetProf. Clayton Bohnet

Toward a Philosophy of Protest: Dissent, State Power, and the Spectacle of Everyday Life is an inquiry into the nature of protest, legislative efforts at its criminalization, and the common good. Using the method of montage, Clayton Bohnet juxtaposes definitions, etymologies, journalism on contemporary events, philosophy, sociology, mainstream and social media content to illuminate rather than obscure the contradictions in our contemporary understanding of dissent and state power.

By problematizing the identification of the good of a political community with the good of the economy, Bohnet develops a political ontology of a people who find their values subordinated to a good identified with the smooth flow of traffic, the forecasts of capital, and the predictability of everyday life.

A text populated more with questions than authoritative answers, this book asks readers to think through particular impasses involving protest and the possibility of egalitarian, participatory politics, such as the risks taken and courage involved in a society that places the expression of political truths above the collective benefits of the well-tempered economy and the dangers of protesting, of dissent, in an era that refers to protesters as economic terrorists.

New scholarly article on hate speech

Prof. Richard WilsonProf. Richard Wilson

For all practical purposes, the decision of social media companies to prohibit hate speech on their platforms means that the longstanding debate in the United States about whether to limit hate speech in the public square has been resolved in favor of greater regulation. Nonetheless, revisiting these debates provides several insights essential for developing more empirically-based and narrowly tailored policies regarding online hate.

First, a central issue in the hate speech debate is the extent to which hate speech contributes to violence. Those in favor of more robust regulation claim a connection to violence, while others dismiss these arguments as too tenuous to support regulation. The data generated by social media, however, now allow researchers to begin to empirically test whether there are visible, measurable harms resulting from hate speech. These data can assist in developing evidence-based policies to address the most significant harms of hate speech while avoiding overbroad regulation that is inconsistent with international standards.

Prof. Molly LandProf. Molly Land

Second, reexamining the U.S. debate about hate speech also reveals the serious missteps of social media policies that prohibit hate speech without regard to context. The policies that social media companies have developed attempt to define hate speech solely with respect to the content of the message. As the early advocates of limits on hate speech made clear, the meaning, force, and consequences of speech acts are deeply contextual, and it is impossible to understand the harms of hate speech without reference to local political realities and the power asymmetries between social groups. Regulation that is abstracted from this context will inevitably be overbroad.

This Article revisits these hate speech debates and considers how they map onto the platform law of content moderation, where emerging evidence indicates a correlation between hate speech online, virulent nationalism, and violence against minorities and activists. It then concludes by developing specific recommendations to bring greater consideration of context into the policies and procedures of social media content moderation.

FIRE releases report on internet expression

This from First Amendment Watch:

On October 20th, the Foundation for Individual Rights in Education (FIRE) published a report examining how colleges discourage, censor, and punish students’ and faculty members’ online expression.

The report, “Memory-holed: Universities and Internet Speech,” details 35 incidents of universities punishing students or faculty for speech online, and 10 universities with policies in place that FIRE says give administrators “immense power to punish large swaths of speech.” According to the advocacy group, many public universities are acting like the First Amendment applies differently to online speech.

“The internet doesn’t function in exactly the same way as a campus quad, but that doesn’t mean public universities, which are bound by the First Amendment, or private universities, bound by their commitments to free speech, have carte blanche to censor or punish their campus communities when they speak online,” the authors write in the introduction to the report.

In one example, a community college charged a student with “hazing, disorderly conduct, breach of the peace” for sending two emails encouraging other students to take a class at a different college (some students allegedly reported the student to the Vice President of Student Affairs who placed him on disciplinary probation). In another example, a college investigated a professor for a satirical tweet about President Donald Trump after the President threatened to bomb Iranian heritage sites.

In addition to highlighting individual incidents, the report’s authors point to a new pattern whereby universities have begun inserting speech codes into their policies governing university emails and internet servers. The authors say that public universities that implement policies prohibiting offensive language online are likely violating the First Amendment.

New scholarly commentary on compelled speech

In August 2019, the then-Chairwoman of the U.S. Election Assistance Commission publicly argued that automatic voter registration (AVR) is a form of compelled political speech that violates the First Amendment. This Essay undergoes the worthwhile, and as of yet unperformed, task of evaluating a hypothetical First Amendment challenge to AVR.

In considering the merits of such a challenge, this Essay examines how the Roberts Court’s recent First Amendment jurisprudence might complicate this analysis by undermining the traditional frameworks used to evaluate incidental First Amendment harms caused by otherwise permissible election regulations.

Clear & Present Danger podcast on free speech & racial justice

In May 2020, protests erupted all over the U.S. after a video emerged of a white police officer killing a black man named George Floyd. Millions took to the streets in support of racial justice under the rallying cry “Black Lives Matter.” Most protests were peaceful, but several cities experienced large-scale violence. Free speech was also affected in the process. A disturbing number of incidents of police brutality and excessive force against peaceful protesters and journalists were documented. President Trump accused a Black Lives Matter leader of “treason, sedition, insurrection” and labelled protestors as “terrorists.”

Clear and Present Danger episode 41 artwork
But demands for structural change also led to calls for de-platforming people whose views were deemed hostile to or even insufficiently supportive of racial justice. A Democratic data analyst named David Shor was fired after tweeting a study that showed that nonviolent black-led protests were more effective than violent ones in terms of securing voter support. In another instance, New York Times staffers protested that the newspaper put “Black @NYTimes staff in danger” by running a provocative op-ed by Republican Senator Tom Cotton, which argued for deploying the military to quell riots. The newsroom revolt led to opinion editor James Bennet resigning.

Academia was affected too. A letter signed by hundreds of Princeton faculty members, employees and students demanded a faculty committee be established to “oversee the investigation and discipline of racist behaviors, incidents, research, and publication” and write “Guidelines on what counts as racist.”

Social media companies came under intense pressure to take a more robust stand on “hate speech.”

The entrenchment of so-called “cancel culture” caused around 150, mostly liberal, writers and intellectuals to sign an open “Letter on Justice and Open Debate.” The letter argued against what the signers saw as “intolerance of opposing views, a vogue for public shaming and ostracism, and the tendency to dissolve complex policy issues in a blinding moral certainty.” The letter drew sharp criticism from many journalists, writers and intellectuals for being “tone-deaf,” “privileged,” “elitist” and detracting from or even hurting the struggle for racial justice.

The wider debate often turned nasty — especially on social media — with loud voices on each side engaging in alarmist, bad faith arguments ascribing the worst intentions to their opponents. Many of those concerned about free speech warned of creeping totalitarianism imposed by “social justice warriors” run amok, intent on imposing a stifling orthodoxy of “wokeism.” Some confused vehement criticism of a person’s ideas with attempts to stifle that person’s speech. On the other hand, some racial justice activists outright denied the existence of “cancel culture” and failed to distinguish between vehement criticism of a person’s ideas and calling for that person to be sanctioned by an employer, publisher or university. Some even accused free speech defenders of being complicit in or actual defenders of white supremacy and compared words deemed racially insensitive with violence.

Underlying these debates is a more fundamental question. Is a robust and principled approach to free speech a foundation for — or a threat to — racial justice?

To help shed light on this question, this episode will focus on what role the dynamic between censorship and free speech has played in maintaining and challenging racist and oppressive societies. The episode will use American slavery and segregation, British colonialism, and South African apartheid as case studies.

New on YouTube

CATO Institute
More than any other Supreme Court justice in recent history, John Roberts has played a defining role in shaping the contours of our free speech law. He’s written more than twice as many majority opinions in this area than any of his colleagues, which gives his jurisprudence staying power. There’s a certain resolve, at once philosophical and tactical, at work here. In 95 percent of the free-expression cases decided during his 15‐​year tenure, Roberts has been in the majority. Equally revealing, Roberts has taken the lead opinion nearly 30 percent of the time. In other words, there’s something special about this genre of cases, something that speaks to who Roberts is and what he hopes the Court bearing his name might be remembered for.

In the first comprehensive report on the Roberts Court’s free-speech jurisprudence, Ronald Collins and David Hudson — each of whom has published more than 10 books on free speech — examine the 56 such cases handed down by the Roberts Court from 2005 through 2020. Beyond its focus on Chief Justice Roberts, the authors’ eye-opening study provides a detailed look at the cases, the justices’ differing approaches, and lawyers who have played key roles in influencing the Court.

More in the news

2020-2021 SCOTUS term: Free expression & related cases

Cases argued

Cert. granted

Pending petitions

Cert. denied

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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.