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First Amendment News

Floyd Abrams

Floyd Abrams Institute to launch new press clause project — FAN 347

July 20, 2022

The Floyd Abrams Institute for Freedom of Expression at Yale Law School is pleased to announce that it will receive a substantial grant from the Stanton Foundation to engage in a two-year project that will focus on the too often overlooked Press Clause of the First Amendment. Mr. Abrams will direct the project.

“For too long,” Mr. Abrams observed, “the provision in the First Amendment that freedom of speech ‘and of the press’ would be protected from government abridgment has led to justifiably broad protection of the former but far too little notice of the latter. It is time to begin to address that constitutional deficiency. Frank Stanton was a memorable champion of press freedom and it is thus especially meaningful that the grant that allows this project to proceed comes from the Stanton Foundation.”

The project will be designed to develop a constitutional strategy aimed at protecting freedom of the press by bringing together academics, lawyers, and journalists in workshops around the nation to discuss press freedom issues and to stimulate expanded scholarship and public engagement about the topic.

The Floyd Abrams Institute for Freedom of Expression at Yale Law School promotes freedom of speech, freedom of the press, access to information, and government transparency. The Institute’s activities are grounded on the belief that collaboration between the academy and the bar will enrich both scholarship and practice.

Contact:

  • Sandra Baron, Senior Fellow, Abrams Institute for Freedom of Expression (Visiting Clinical Lecturer in Law, Yale Law School) sandra.baron@yale.edu

Related

Abrams and Bollinger on free speech on college campuses 

First Amendment lawyer Floyd Abrams and Lee C. Bollinger, the president of Columbia University, speak freely about affirmative action and free speech on college campuses.

University of Washington punishes professor for ‘inappropriate’ opinion — FIRE sues

This from a FIRE press release:

Prof. Stuart Reges

When Professor Stuart Reges challenged the University of Washington’s position on land acknowledgements, administrators punished him, undermining his academic freedom. Today, backed by the Foundation for Individual Rights and Expression, Reges sued the university to vindicate his First Amendment right to express his opinion — even if it differs from the party line.

Colleges increasingly promote land acknowledgment statements that recognize indigenous ties to the land on which a college sits. On a list of syllabus “best practices,” UW’s computer science department encourages professors to include such a statement and suggests using language developed by the university’s diversity office “to acknowledge that our campus sits on occupied land.” The fact that the statement could be adapted seemed clear — until Reges wrote one that administrators did not like.

“University administrators turned me into a pariah on campus because I included a land acknowledgment that wasn’t sufficiently progressive for them,” said Reges. “Land acknowledgments are performative acts of conformity that should be resisted, even if it lands you in court. I am pleased that FIRE joined with me to fight back against University of Washington’s illegal viewpoint discrimination.”

Related

Brotman on ‘cancel culture’ and censorship

Stuart Brotman

The term “cancel culture” has become unusually pervasive of late. It’s even reached the Vatican Diplomatic Corps, which includes representatives from the 183 countries accredited to the Holy See. There, Pope Francis said, “Cancel culture is invading many circles and public institutions. As a result, agendas are increasingly dictated by a mindset that rejects the natural foundations of humanity and the cultural roots that constitute the identity of many people.”

Today, cancel culture largely has been reduced to a label affixed to any call for someone or something to be publicly admonished, typically through social media and its aftermath. It is used by those along all poles of the political spectrum to point out the intolerance of the other side.

But cancel culture is just a symptom of a larger social disease that has been with us since Victorian times, then amped up in the United States as it became incorporated into our American value system. Put simply, the root of cancel culture is an individual’s or group’s need to censor.

ACLU uncovers ‘shocking’ use of phone data by Homeland Security

The Trump administration’s immigration enforcers used mobile location data to track people’s movements on a larger scale than previously known, according to documents that raise new questions about federal agencies’ efforts to get around restrictions on warrantless searches.

The data, harvested from apps on hundreds of millions of phones, allowed the Department of Homeland Security to obtain data on more than 336,000 location data points across North America, the documents show.

These data points came from all over the continent, including in major cities like Los Angeles, New York, Chicago, Denver, Toronto and Mexico City. This location data use has continued into the Biden administration, as Customs and Border Protection renewed a contract for $20,000 into September 2021, and Immigration and Customs Enforcement signed another contract in November 2021 that lasts until June 2023.

The American Civil Liberties Union obtained the records from DHS through a lawsuit it filed in 2020. It provided the documents to POLITICO and separately released them to the public on Monday.

Institute for Free Speech prevails in settlement agreement against Pennsylvania school board

This from the Institute’s press release:

Last May, a solicitor for the Pennsbury School Board shouted down and censored critics of a new district policy during public comment time at a board meeting, screaming “you’re done!” Several of the targets of his wrath said, “see you in court.” After almost a year of litigation, the board agreed last night to settle the lawsuit and pay $300,000 in attorney’s fees and nominal damages.

In addition, the district has rewritten its public-comment policy to conform to the First Amendment and the federal court’s preliminary injunction ruling. It also abolished its so-called civility policy and parted ways with the law firm that was advising it during the time it censored comments, including the solicitor who shouted down speakers.


The lawsuit was filed last October by Bucks County residents Douglas Marshall, Simon Campbell, Robert Abrams, and Tim Daly. They were represented by attorneys from the Institute for Free Speech and Michael Gottlieb of Vangrossi & Recchuiti.

[ . . . ]

Under the settlement agreement signed by the board, the district must pay $300,000 for the plaintiffs’ attorney fees as well as nominal damages of $17.91 to each plaintiff, a symbolic payment acknowledging that the plaintiffs’ rights were violated. The amount was chosen because 1791 was the year the First Amendment was ratified.

[ . . . ]

The case title is Marshall v. Amuso. For more information, click here.

Related

New book on free speech and free societies

Book cover of "The Paradox of Democracy: Free Speech, Open Media, and Perilous Persuasion"

A thought-provoking history of communications that challenges ideas about freedom of speech and democracy.

At the heart of democracy lies a contradiction that cannot be resolved, one that has affected free societies since their advent: Though freedom of speech and media has always been a necessary condition of democracy, that very freedom is also its greatest threat. When new forms of communications arrive, they often bolster the practices of democratic politics. But the more accessible the media of a society, the more susceptible that society is to demagoguery, distraction, and spectacle. Tracing the history of media disruption and the various responses to it over time, Zac Gershberg and Sean Illing reveal how these changes have challenged democracy—often with unsettling effects.

The Paradox of Democracy captures the deep connection between communication and political culture, from the ancient art of rhetoric and the revolutionary role of newspapers to liberal broadcast media and the toxic misinformation of the digital public sphere. With clear-eyed analysis, Gershberg and Illing show that our contemporary debates over media, populism, and cancel culture are not too different from democratic cultural experiences of the past. As we grapple with a fast-changing, hyper-digital world, they prove democracy is always perched precipitously on a razor’s edge, now as ever before.

New book on hate speech

Book cover of "Free Speech and Hate Speech in the United States: The Limits of Toleration"

Free Speech and Hate Speech in the United States explores the concept and treatment of hate speech in light of escalating social tensions in the global twenty-first century, proposing a shift in emphasis from the negative protection of individual rights toward a more positive support of social equality.

Drawing on Axel Honneth’s theory of recognition, the author develops a two-tiered framework for free speech analysis that will promote a strategy for combating hate speech. To illustrate how this framework might impact speech rights in the U.S., she looks specifically at hate speech in the context of symbolic speech, disparaging speech, internet speech and speech on college campuses.

Entering into an ongoing debate about the role of speech in society, this book will be of key importance to First Amendment scholars, and to scholars and students of communication studies, media studies, media law, political science, feminist studies, American studies, and history.

Forthcoming book: Big tech and free speech

Book cover of "BIG TECH TYRANNY: Modern Monopolies Crush Free Speech and the Free Market"

Today’s big tech monopolies threaten the core of our political system, controlling the information that is available to the public and shaping that information to benefit their own commercial interests and political views. The most concerning strategy of the big tech monopolies is their exploitation of personal data and the tech giants’ role as digital gatekeepers.

When control over information in a democracy rests in the hands of only a few individuals, the results of an election can be manipulated by those individuals. With big tech’s massive financial resources and command of critical digital media, these companies are positioned to dominate and distort the marketplace of ideas.

This threat to free speech is a risk that America can’t afford.

First Amendment Watch’s special issue of defamation

From First Amendment Watch:

We’re living in an era of political division and the past seven years have produced high-level clashes in the form of defamation lawsuits. First Amendment Watch has compiled recent coverage that provides context about some of the bigger cases within defamation law. The topics explored: The explosion of disinformation (Alex Jones); false election claims (Dominion Voting Systems and Smartmatic); political retribution (Devin Nunes) and lawsuits filed on behalf of, as well as against, a sitting U.S. president (Donald Trump).

Scholarly comment on protest surveillance and the First Amendment

Tyler Valeska

During and after last year’s expansive Black Lives Matter protests, police departments nationwide publicly shared robust video surveillance of protestors. Much of this footage rendered individual protestors identi­fiable, sometimes in ways that seemed intentional. Such disclosures raise First Amendment concerns under NAACP v. Alabama ex rel. Patterson and its progeny, including the recent Americans for Prosperity v. Bonta decision. Those cases limit how the government may collect and distribute sensitive associational information. Bonta raised the First Amendment bar by adding (or clarifying) a narrow tailoring requirement to the exacting scrutiny test for associational disclosures.

This Piece argues that wholesale dumps of unedited footage likely violate the First Amendment in at least some circumstances, including those of last summer’s Black Lives Matter protests. While the Supreme Court has insulated governmental collection of protest surveillance from First Amendment challenges via its standing doctrine, public dissemina­tion of such surveillance creates a cognizable injury that avoids standing obstacles. That injury is inflicted by governmental distribution of protest surveillance despite the public nature of protests, as protestors retain cer­tain privacy interests in the public square. And despite the strong gov­ernmental interest in transparency surrounding police–protestor interactions, blanket dumps of footage likely fail under exacting scrutiny when they render individual peaceful protestors publicly identifiable. Threat of identification chills protestors’ speech and assembly rights by subjecting them to threats of private retaliation like adverse actions by employers and violence by extremist militias. Bonta’s narrow tailoring requirement likely requires police to avoid identifying peaceful protestors by blurring out faces before releasing (or while live streaming) protest footage and by not zooming in surveillance cameras for extended, close-range live streaming of individuals.

Scholarly article on Miranda rights in Janus free speech context

Deborah J. La Fetra

Overturning forty years of precedent, the Supreme Court held in Janus v. American Federation of State, County, and Municipal Employees, Council (2018), that public employees have a First Amendment right to refrain from joining or subsidizing a union because the union may use their money to speak on a wide range of inherently political matters, including speech with which they may disagree. Therefore, the state may deduct dues from employee paychecks and transfer the money to the union only if employees affirmatively waive their First Amendment rights. As a matter of constitutional due process, this means that the choice to subsidize the union depends on employees’ knowledge that their First Amendment rights are implicated Yet, in response to Janus, California enacted a law that effectively stands as an obstacle to workers’ full exercise of their First Amendment rights by giving unions—not employers—the authority to inform employees that they have a constitutional right not to join the union. This law serves as a model for other states’ existing and proposed legislation. Workers cannot exercise a right they do not know they have, and the state cannot abdicate its duty to ensure a knowing and voluntary waiver of constitutional rights. Both the First Amendment and due process demand more.

Modeled on the principles underlying Miranda v. Arizona (1966), this article argues that the Fourteenth Amendment’s Due Process Clause requires the government employer, prior to deducting union dues from paychecks, to provide adequate information about workers’ First Amendment rights such that employees are capable of making a knowing and voluntary waiver, if they so choose.

Scholarly comment on First Amendment and bans on critical race theory

Dylan Salzman

The past two years have seen a proliferation of state laws that restrict how race may be discussed in public schools. Among other topics, these laws commonly ban presentation of the viewpoint that the U.S. government—or legal system—is racist. But such policies raise important First Amendment questions: while it is well accepted that school boards and state legislatures retain great discretion to promulgate curricula, the exact scope of that authority is unclear. The Supreme Court case most closely related to this question, Hazelwood School District v. Kuhlmeier, addresses only when school districts may permissibly regulate student speech in curricular contexts. Hazelwood does not resolve the antecedent question of whether local educational authorities may constitutionally constrict the range of permissible political viewpoints in curricula.

This Comment argues that existing doctrine supports recognizing a student right to be free from political orthodoxy in public education. It proposes a burden- shifting test for vindicating that right. First, courts should evaluate whether curricular decisions restrict discussion of political viewpoints. Second, the government should have the opportunity to show that the restriction serves a legitimate interest, in part pursuant to the test laid out in Tinker v. Des Moines Independent Community School District. Finally, plaintiffs should be able to prove that the government’s restriction was based on impermissible animus. This Comment concludes by arguing that certain provisions in recently passed critical-race-theory laws should be considered unconstitutional because they restrict political discussion without legitimate justification.

Related

Scholarly note on student speech

Bo Malin-Mayor

This Note proposes an important new dimension for student-speech jurisprudence: procedure. Current doctrine focuses on sorting the speech itself into categories, largely ignoring the school’s response. But empirical evidence shows that how a school regulates speech determines whether students learn the lessons that schools intend or simply turn against authority they perceive as unfair.

Courts have often allowed schools to restrict speech on the assumption that doing so teaches students useful lessons, but without looking at how restrictions are implemented, it is impossible to know whether this assumption holds. This Note, therefore, develops a framework for judicial scrutiny of the disciplinary process in student-speech cases.

More in the news

2021-2022 SCOTUS term: Free expression & related cases

Cases decided

Review granted

Pending petitions

First Amendment-related petitions

Petition withdrawn 

Applications for stay orders

Review denied

Last 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.