“This session, we took action to ensure that ‘We the People’ — real Floridians across the Sunshine State — are guaranteed protection against the Silicon Valley elites. Many in our state have experienced censorship and other tyrannical behavior firsthand in Cuba and Venezuela. If Big Tech censors enforce rules inconsistently, to discriminate in favor of the dominant Silicon Valley ideology, they will now be held accountable.”
Florida Gov. Ron DeSantis recently signed a measure (SB 7072) that would bar social media platforms from de-platforming or de-prioritizing any Florida political candidates. Among other things, the law provides that:
- Platforms cannot ban or de-prioritize candidates for state office for more than 14 days.
- Platforms cannot ban or de-prioritize any news outlet meeting certain size requirements.
- Platforms must be transparent about moderation processes and give users notice of moderation actions.
- Users and the state will have the right to sue companies that violate the law. Statutory fines could be as high as $250,000 per day for some offenses.
This from David McCabe, “Florida, in a First, Will Fine Social Media Companies That Bar Candidates,” The New York Times (May 25):
More than a hundred bills targeting the companies’ moderation practices have been filed nationwide this year, according to the National Conference of State Legislatures. Many of the bills have died, but a proposal is still being debated in Texas.
Georgia law banning commercial boycotts of Israel struck down
According to a story in The Hill, a “Georgia law banning the state from doing business with anyone promoting a boycott of Israel violates the First Amendment.” The report continues:
In a ruling issued Friday, District Court Judge Mark Cohen rejected state officials’ efforts to dismiss a lawsuit from Abby Martin, a progressive journalist and documentary filmmaker, challenging the law.
Cohen said in a 29-page decision that the law “prohibits inherently expressive conduct protected by the First Amendment, burdens Martin’s right to free speech, and is not narrowly tailored to further a substantial state interest.”
Related: Right to protest laws, passed and proposed
- David McCabe, “Florida, in a First, Will Fine Social Media Companies That Bar Candidates,” The New York Times (May 25) (“Florida, along with Republican-run legislatures in Oklahoma and Iowa, has in recent weeks passed legislation limiting the right to protest and providing immunity to drivers who strike protesters in public streets.”)
- Eugene Volokh, “California Bill Would Ban ‘Protest Activities’ Within 300 Feet of Vaccination Site,” The Volokh Conspiracy (May 24)
Challenge to federal anti-riot law rejected
This from Josh Gerstein over at Politico:
A federal judge in Alabama has upheld the constitutionality of a half-century-old federal anti-riot law in the face of claims that the law has racist roots and threatens protest activity protected by the First Amendment.
U.S. District Court Judge Terry Moorer’s decision Thursday afternoon in favor of prosecutors clears the way for Tia Pugh, 22, to face trial next week on a single felony charge: that she violated the “civil disorder” law by smashing a police car window with a bat during a protest in Mobile six days after a Black man, George Floyd, died in the custody of Minneapolis police.
TV news footage captured the raucous demonstration and the moment when the police car window was shattered.
Lawyers for Pugh challenged the statute on various legal grounds and noted that the provision under which Pugh was charged was termed the “Civil Obedience Act” in what appeared to be a dig at Rev. Martin Luther King Jr. and others advocating civil disobedience during the civil rights movement of the 1960s. The motion to dismiss the case was part of what the government termed a coordinated effort by defense attorneys to take aim at the law in cases across the country where it is being wielded against people accused of violence during last year’s racial justice protests.
- “United States v. Miselis: Fourth Circuit Finds the Anti-Riot Act Partially Unconstitutional,” Harvard Law Review (2021)
Trump claims immunity in insurrection lawsuit
- Katelyn Polantz, “Trump responds to insurrection lawsuit by claiming immunity while he was President,” CNN (May 25)
Donald Trump’s attorney defended the ex-President’s incendiary speech on January 6, saying he is protected under the First Amendment and had “absolute immunity” while he was President to contest the election, according to a court filing this week.
The argument is the first time Trump has formally defended his actions in court since the insurrection, and reflects his continued push to his supporters that he did nothing wrong and was robbed of a second term in office.
Trump argues in DC District Court that his bully pulpit message to his supporters at the political rally on January 6 — encouraging them to oppose Congress certifying the vote — was a constitutionally protected act of the presidency.
“While holding that office, former President Trump was free to advocate for the appointment and certification of electors, just as he was entitled to advocate for the passage or defeat of a constitutional amendment, or the reconsideration of a congressional act over his veto even though the President does not directly participate in those congressional acts,” Trump’s private attorney Jesse Binnall wrote in a response in court to a lawsuit from Democratic Rep. Eric Swalwell seeking to hold him accountable for the insurrection. “The claims against former President Trump directly contravene the absolute immunity conveyed on the President by the Constitution as a key principle of separation of powers.”
Headline: ‘Eleventh Circuit Says No Clearly Established Right to Photo Police on Highway’
This excerpt is from Steven D. Schwinn over at Constitutional Law Prof Blog:
The Eleventh Circuit ruled last week that a witness to a highway accident didn’t have a clearly established right to photograph police activity on the median. The court granted an officer qualified immunity against the witness’s First Amendment claim and dismissed the case.
The case, Crocker v. Beatty, arose when James Crocker stopped to take pictures of an accident on the median of I-95 in Florida. Martin County Deputy Sheriff Steven Beatty confiscated Crocker’s phone and placed him in a patrol vehicle. Crocker sued, alleging a violation of his First Amendment right to free speech, among other things.
- Samantha Barbas, “The Rise and Fall of Morris Ernst, Free Speech Renegade” (University of Chicago Press, June 10, 2021)
A long-overdue biography of the legendary civil liberties lawyer—a vital and contrary figure who both defended Ulysses and fawned over J. Edgar Hoover.In the 1930s and ’40s, Morris Ernst was one of America’s best-known liberal lawyers. The ACLU’s general counsel for decades, Ernst was renowned for his audacious fights against artistic censorship. He successfully defended Ulysses against obscenity charges, litigated groundbreaking reproductive rights cases, and supported the widespread expansion of protections for sexual expression, union organizing, and public speech. Yet Ernst was also a man of stark contradictions, waging a personal battle against Communism, defending an autocrat, and aligning himself with J. Edgar Hoover’s inflammatory crusades.
Arriving at a moment when issues of privacy, artistic freedom, and personal expression are freshly relevant, The Rise and Fall of Morris Ernst, Free Speech Renegade brings this singularly complex figure into a timely new light. As Samantha Barbas’s eloquent and compelling biography makes ironically clear, Ernst both transformed free speech in America and inflicted damage to the cause of civil liberties. Drawing on Ernst’s voluminous cache of publications and papers, Barbas follows the life of this singular idealist from his pugnacious early career to his legal triumphs of the 1930s and ’40s and his later idiosyncratic zealotry. As she shows, today’s challenges to free speech and the exercise of political power make Morris Ernst’s battles as pertinent as ever.
- Bret Gary, “Dirty Works: Obscenity on Trial in America’s First Sexual Revolution” (Stanford University Press, Aug. 10, 2021)
A rich account of the 1920s to 1950s New York City, starring an eclectic mix of icons like James Joyce, Margaret Sanger, and Alfred Kinsey―all led by an unsung hero of free expression and reproductive rights: Morris L. Ernst.At the turn of the twentieth century, the United States was experiencing an awakening. Victorian-era morality was being challenged by the introduction of sexual modernism and women’s rights into popular culture, the arts, and science. Set during this first sexual revolution, when civil libertarian-minded lawyers overthrew the yoke of obscenity laws, Dirty Works focuses on a series of significant courtroom cases that were all represented by the same lawyer: Morris L. Ernst.
Ernst’s clients included a who’s who of European and American literati and sexual activists, among them Margaret Sanger, James Joyce, and Alfred Kinsey. They, along with a colorful cast of burlesque-theater owners and bookstore clerks, had run afoul of stiff obscenity laws, and became actors in Ernst’s legal theater that ultimately forced the law to recognize people’s right to freely consume media. In this book, Brett Gary recovers the critically neglected Ernst as the most important legal defender of literary expression and reproductive rights by the mid-twentieth century. Each chapter centers on one or more key trials from Ernst’s remarkable career battling censorship and obscenity laws, using them to tell a broader story of cultural changes and conflicts around sex, morality, and free speech ideals.
Dirty Works sets the stage, legally and culturally, for the sexual revolution of the 1960s and beyond. In the latter half of the century, the courts had a powerful body of precedents, many owing to Ernst’s courtroom successes, that recognized adult interests in sexuality, women’s needs for reproductive control, and the legitimacy of sexual inquiry. The legacy of this important, but largely unrecognized, moment in American history must be reckoned with in our contentious present, as many of the issues Ernst and his colleagues defended are still under attack eight decades later.
Forthcoming book on the Freedom of Information Act
- Margaret B. Kwoka, “Saving the Freedom of Information Act” (Cambridge University Press, Sept. 2021)
New scholarly article by Genevieve Lakier
- Genevieve Lakier, “The Non–First Amendment Law of Freedom of Speech,” Harvard Law Review (2021)
The First Amendment dominates debate about freedom of speech in the United States. Yet it is not the only legal instrument that protects expressive freedom, the rights of the institutional press, or the democratic values that these rights facilitate. A rich body of local, state, and federal laws also does so, and does so in ways the First Amendment does not.
This Article explores the history and present-day operation of this non–First Amendment body of free speech law. Doing so changes our understanding of both the past and the present of the American free speech tradition. It reveals that there was more legal protection for speech in the nineteenth century than scholars have assumed. It also makes evident that the contemporary system of free expression is much more majoritarian, and much more pluralist in its conception of what freedom of speech means and requires, than what we commonly assume. Recognizing as much is important not only as a descriptive matter but also as a doctrinal one. This is because in few other areas of constitutional law does the Supreme Court look more to history to guide its interpretation of the meaning of the right. And yet, the Court’s view of the relevant regulatory history is impoverished.
Missing from the Court’s understanding of freedom of speech is almost any recognition of the important nonconstitutional mechanisms that legislators have traditionally used to promote it. The result is a deeply inconsistent body of First Amendment law that relies on a false view of both our regulatory present and our regulatory past — and is therefore able to proclaim a commitment to laissez-faire principles that, in reality, it has never been able to sustain.
- “Genevieve Lakier to join Knight Institute as visiting research scholar,” FAN 293 (April 7)
Massaro & Norton on free speech and the future of democracy
- Toni Massaro & Helen Norton, “Free Speech and Democracy: A Primer for 21st Century Reformers,” UC Davis Law Review (2021)
Left unfettered, the 21st-century speech environment threatens to undermine critical pieces of the democratic project. Speech operates today in ways unimaginable not only to the First Amendment’s 18th–century writers but also to its 20th-century champions. Key among these changes is that speech is cheaper and more abundant than ever before, and can be exploited—by both government and powerful private actors alike—as a tool for controlling others’ speech and frustrating meaningful public discourse and democratic outcomes.
The Court’s longstanding First Amendment doctrine rests on a model of how speech works that is no longer accurate. This invites us to reconsider our answers to key questions and to adjust doctrine and theory to account for these changes. Yet there is a more or less to these re-imagining efforts: they may seek to topple, or instead to tweak, current theory and doctrine. Either route requires that reformers revisit the foundational questions underlying the Free Speech Clause: What, whom and how does it protect—and from whom, from what, and why?
Part I of this Article discusses the threats to public discourse and democracy posed in the 21st century speech environment, as well as the failure of traditional First Amendment theory and doctrine adequately to address these threats. Part II compares the advantages and shortcomings of topples and tweaks as strategies for reform—and by reform, we mean changes to theory and doctrine that may enable the First Amendment to better protect free speech values and democracy from the threats posed by cheap, abundant, and weaponized speech. Here we focus on tweaks and explain why.
Part III identifies key features of contemporary theory and doctrine that hobble efforts to empower the First Amendment to respond to the threats to well-functioning democracy posed in the 21st-century speech environment. In so doing, it introduces a process for considering and addressing foundational obstacles for constructive First Amendment reform and flags some proposals (our own, as well as others’) for productive tweaks to those core features.”
- Andrew T. Kenyon, “Democracy of Expression: Positive Free Speech and Law” (Cambridge University Press, 2021)
Tushnet on the ‘n-word’
- Mark Tushnet, “N-Word Issues Revisited, and the ‘Use-Mention’ Distinction Questioned,” Balkinization (May 18)
A recent article by philosopher Gerald Dworkin (brought to my attention by Brian Leiter) provokes these thoughts about recent controversies, some in law schools, about the n-word. Dworkin helpfully describes what I had thought was the most important first step in thinking about those controversies, the distinction between use and mention. But, almost in passing, he suggests the possibility that drawing that distinction actually might not be all that helpful.
The idea behind the distinction is this: A person who uses the n-word inflicts harm of a certain sort, which I’ll call – I think accurately, but I don’t think anything turns on whether I’m using the term correctly – semantic harm. A person who mentions the n-word doesn’t inflict semantic harm. The usual argument about the use-mention distinction in this context goes as follows.
Noting the difference between use and mention doesn’t tell us what to do in response to the semantic harm but whatever we think we should do about it, we shouldn’t do the same thing when semantic harm doesn’t occur. (There’s, of course, a non-trivial argument, which Dworkin lays out, that we shouldn’t do anything about the harm caused by mentions – and because all issues about regulating speech involve figuring out what to do when speech inflicts harm, the mere fact that harm occurs doesn’t justify regulation.)
Dworkin mentions, so to speak, controversies over the use of the word “niggardly,” but doesn’t build them into his analysis. People avoid using that word (or at least might reasonably avoid using it) even though it has no relation to the n-word either etymologically or semantically, because they believe that some listeners will hear the sounds of the word and experience harm. Here the harm isn’t semantic, of course. Instead, it involves what I’ll call “phonic” harm: A person experiences harm simply upon hearing the sounds that constitute the word.
Now, suppose, as I suspect is true, that the neural mechanism linking semantics to harm is different from the neural mechanism linking phonics to harm. The phonic harm occurs when the word is mentioned. If that harm is roughly similar to the semantic harm inflicted when the word is used, then the use-mention distinction doesn’t help us figure out what to do in response.
Forthcoming scholarly article on anti-SLAPP statutes
- Mbilike M. Mwafulirwa & Charles William Adams, “The Last Lecture: State Anti-SLAPP Statutes and the Federal Courts,” St. John’s Law Review (2022)
YouTube: Rosen on student free speech case
- “Jeffrey Rosen and Ali Velshi Discuss Student Free Speech Case at Supreme Court,” National Constitutional Center (May 3)
YouTube: Senator McConnell on Citizens United
- “McConnell Co-Sponsors Bill to Block Democrats’ Anti-Free-Speech, Anti-Privacy Proposal,” Senate Republican Leader Mitch McConnell (May 20)
So to Speak podcast on comic book censorship
- Episode 136 “Comic book panic!”
Rebellion! Crime! Juvenile delinquency!
In this episode of So to Speak: The Free Speech Podcast, producer Chris Maltby explores the rise of comic books in the early 20th century and the moral panic, book burnings, and censorship that followed.
- Eugene Volokh, “‘How the Liberal Media Dismissed the Lab-Leak Theory and Smeared Its Supporters’,” The Volokh Conspiracy (May 25)
- Alexander Baiocco, “Benefits of ‘Microtargeting’: Why Online Ad Targeting Tools Are Good for Free Speech and Democracy,” Institute for Free Speech (May 25)
- Eugene Volokh, “Does Libel Dispute About Whether ‘TheDemonatrix’ Comics Are ‘Lolicon’ Belong in Federal Court?,” The Volokh Conspiracy (May 25)
- David L. Hudson, Jr., “Ind. appeals court rejects First Amendment challenge to telephone-harassment law,” The Free Speech Center (May 25)
- “Ninth Circuit Rules In Favor of Plaintiff In Bivens Claim Brought Against Federal Agents,” First Amendment Watch (May 24)
- “Defamation Former President Trump Sued for Defamation Over Calling COVID-19 the ‘Chinese Virus’,” First Amendment Watch (May 24)
- Katie Kortepeter, “VICTORY: Facing public pressure, Rutgers Law Student Bar Association rescinds critical race theory requirement,” FIRE (May 24)
- “News outlets, First Amendment groups bring suit over access to court records,” VT Digger (May 23)
- “CNN: Trump Justice Department seized reporter phone records,” Associated Press (May 21)
- David L. Hudson. Jr., “Federal judge upholds school dress-code ban on gun images,” The Free Speech Center (May 18)
2020-2021 SCOTUS term: Free expression & related cases
- Mckesson v. Doe (per curium, 7-1 with Thomas, J., dissenting) (judgment vacated and remanded to 5th Cir.)
- Facebook, Inc. v. Duguid (OA: Dec. 8, 2020) (Telephone Consumer Protection Act robocall case — decided on statutory grounds)
- Facebook, Inc. v. Duguid (OA: Dec. 8, 2020) (Telephone Consumer Protection Act robocall case)
- Fulton v. City of Philadelphia (OA: Nov. 4, 2020) (religious expression: free exercise & free speech claims)
- Carney v. Adams (OA: Oct. 5, 2020) (standing/judicial elections)
- Thomas More Law Center v. Becerra (OA: April 26, 2021)
- Americans for Prosperity Foundation v. Rodriguez (OA: April 26, 2021)
- Mahanoy Area School District v. B.L. (OA: April 28, 2021)
- Houston Community College System v. Wilson
- Mahanoy Area School District v. B.L.
- Thomas More Law Center v. Becerra
- Americans for Prosperity Foundation v. Rodriguez
- Trump v. Knight First Amendment Institute (judgment is vacated, and the case is remanded to the Second Circuit to dismiss as moot)
- Louisiana v. Hill
- Project Veritas Action Fund v. Rollins
- American Civil Liberties Union v. U.S.
- Campbell v. Pennsylvania School Boards Association, et al. (Institute for Free Speech amicus brief in support of Petitioners)
- Boardman v. Inslee
- Hamilton v. Speight
- City of Austin, Texas v. Reagan National Advertising of Texas Inc.
- Institute for Free Speech v. Becerra
- Arlene’s Flowers Inc. v. Washington
- Thompson v. Marietta Education Association
- Thompson v. DeWine
- Stockman v. United States
- Jack Daniel’s Properties Inc. v. VIP Products LLC
- Hurchalla v. Lake Point Phase
- Bruni v. City of Pittsburgh
- Hunt v. Board of Regents of the University of New Mexico
- Lieu v. Federal Election Commission
- City of Sacramento, California v. Mann
- Evans v. Sandy City, Utah
- Reisman v. Associated Faculties of the University of Maine
- Austin v. Illinois
- Living Essentials, LLC v. Washington
- AbbVie Inc., et al. v. Federal Trade Commission (re scope of Noerr-Pennington doctrine)
- Rentberry, Inc. v. City of Seattle (cert. denied)
- Uzuegbunam & Bradford v. Preczewski, et al. (nominal damages and mootness in campus speech context) (cert. granted: 8-1 held Art. III claim not moot)
- National Association of Broadcasters v. Prometheus Radio Project (Re: Section 202(h) of the Telecommunications Act of 1996) (cert. granted & case argued) (held: 9-0: FCC decision to repeal or modify three of its media ownership rules was not arbitrary or capricious under the Administrative Procedure Act)
- Federal Communications Commission v. Prometheus Radio Project (Re: FCC cross-ownership restrictions) (cert. granted & case argued)
- Retzlaff v. Van Dyke (state anti-SLAPP laws in federal diversity cases) (cert. denied)
Last scheduled FAN