Lawmakers often tell me we have too much power over speech, and frankly I agree. I’ve come to believe that we shouldn’t make so many important decisions about speech on our own. — Mark Zuckerberg (March 30, 2019)
When he launched Facebook, Mark Zuckerberg wanted to run his social networking platform free of government intervention other than to protect his business from liability as provided for under Section 230 of the Communications Decency Act. But when controversies swirled around Facebook and how it used its customers’ personal data and its role in Russian interference in the last presidential election, its CEO switched gears. Looking for an exit door, the once libertarian businessman recently turned to the government to do his censorial bidding. In a Washington Post op-ed Zuckerberg wrote: “I believe we need a more active role for governments and regulators. From what I’ve learned, I believe we need new regulation in four areas: harmful content, election integrity, privacy and data portability.”
Whatever one makes of this shift in views — whether it amounts to “outsourcing censorship to the government” — one thing seems clear: It is yet another sign of the ever-changing character and culture of free speech in America. Up to now, attacks on the existing free speech culture and the laws protecting controversial forms of expression have come from the New Left, from liberals appalled by the “weaponizing of the First Amendment.” But now — TAKE NOTE — there is a new adversary: a billionaire Silicon Valley social media businessman. (The folks over at Cato have suspected Mr. Zuckerberg of being on the wrong side of the free speech divide.) This alliance of the New Left and the New Tech may portend a culture shift, one that could, in time, find its way to the once sacred domain of New York Times Co. v. Sullivan (see, e.g., here, here, and here).
It is an odd alliance (if I can call it that): The New Liberal Left thinks the First Amendment gives too much power to the powerful, whereas the New Tech wishes to turn over some of its power to the government. In the case of the former, the motivation is to seize power from the powerful; whereas, in the case of the latter, the motivation of the powerful is to yield power. Either way, the signposts are the same: Change Ahead.
- Eric Lutz, Can Mark Zuckerberg Outsmart Elizabeth Warren?, Vanity Fair (April 1, 2019)
- Mike Isaac, Mark Zuckerberg’s Call to Regulate Facebook, Explained, New York Times (March 30, 2019)
- Eugene Volokh, No, a Web Platform’s Decision to Restrict Speech Doesn’t Strip It of 47 U.S.C. § 230 Immunity, The Volokh Conspiracy (March 20, 2019)
Campaign Disclosure Case Before DC Circuit
- Crossroads Grassroots Policy Strategies v. Citizens for Responsibility and Ethics in Washington
- District Court opinion here
- Kate Ackley, Court Bucks Chief Justice, Sheds Light on Dark Money Donors, Roll Call (Sept. 18, 2018)
- Court Ruling on Independent Expenditures Creates New Risks for Groups, Institute for Free Speech (Aug. 23, 2018)
Commentaries on Gerrymandering Cases
- Edward Foley, Gerrymandering as Viewpoint Discrimination: A “Functional Equivalence” Test, Ohio State University (April 1, 2019)
- Tonja Jacobi & Matthew Sag, Partisan Gerrymandering and the Passive Court, SCOTUS OA (April 1, 2019)
Senator Cruz’s Challenge to Campaign Finance Law
- Richard Hasen, Senator Ted Cruz Suing to Kill Campaign Finance Law Limiting Post-Election Fundraising for Personal Loan Repayments to $250K, Election Law Blog (April 1, 2019) (linking to Zoe Tillman)
Reporters Committee Asks Court to Release Grand Jury Materials from Muller Report
- Theodore Boutros (Counsel of Record), In re Application of Reporters Committee for Freedom of the Press (April 1, 2019)
- Eugene Volokh, No Sealing of Tampa Bay Buccaneers Appellate Argument in Deepwater Horizon Claim Case, The Volokh Conspiracy (April 1, 2019)
Knight Institute & ACLU Challenge Constitutionality of Government Censorship System
- Knight Institute and ACLU Challenge Constitutionality of Far-Reaching Government Censorship System (April 2, 2019)
Iowa State University First Amendment Series Continues
- Iowa State University is continuing its First Amendment Series into April according to the Iowa State University News Service, for a full list of events, click here. One event of interest includes a lecture by Simon Tam:
Tam is founder of and bassist for The Slants, an Asian-American dance rock band whose band name led to a nearly eight-year-long trademark case. In 2017, the U.S. Supreme Court ruled in Tam’s favor in Matal v. Tam.
Tam’s lecture, “A Name Worth Fighting For: How Being Asian Got Me in Trouble,” is at 8:15 p.m. Tuesday, April 9, in the Memorial Union Great Hall. A live musical performance follows his lecture.
Tam talks frankly about racism, his experiences as a musician and how his band unintentionally revived a longstanding battle over trademarks and racial slurs. His book, “Slanted: How Being Asian Got Me Into Trouble,” will publish this spring.
Events continue on Tuesday, April 23 with “Shut Up and Dance”:
“Shut Up and Dance” is a new program of the Free Speech Center at Middle Tennessee State University and 1 for All, a national, nonpartisan program designed to build understanding and support for the First Amendment’s five freedoms.
It tells the story of America’s social struggles and progress through pop, rock, gospel, soul, country and hip-hop and illuminates for audiences the pivotal moments when artists were told to be quiet and instead spoke up.
→ Find more information about ISU lectures online or by calling 515-294-9934.
New Book on Academic Freedom
- Henry Reichman, The Future of Academic Freedom, Johns Hopkins University Press (April 2, 2019)
Forthcoming Scholarly Article
- Moran Yemini, Missing in ‘State Action’: Toward a Pluralist Conception of the First Amendment, Law & Clark Law Review (forthcoming, 2020)
New Scholarly Article
- Raymond Shih Ray Ku, The First Amendment Implications of Copyright’s Double Standard, Virginia Sports and Entertainment Law Journal (2018)
News from First Amendment Watch
- In Sworn Deposition, Alex Jones Insists “Form Of Psychosis” Caused Him To Believe Sandy Hook Massacre Was A Conspiracy, First Amendment Watch (April 1, 2019)
- Judge Tosses Defamation Lawsuit Against Jeanine Pirro, Fox News, First Amendment Watch (March 26, 2019)
Article: Disinformation & the First Amendment
- Deanna Paul, How fighting political disinformation could collide with the First Amendment, Washington Post (March 30, 2019)
Article: Beyer: “Can tabloids hide behind the First Amendment?”
- Rebecca Beyer, Catch and Kill: Can tabloids hide behind the First Amendment?, ABA Journal (April 2019)
Clear & Present Danger Podcast
- Episode 22 – Fighting Words – Free Speech in 18th Century America, Part II, Clear & Present Danger
Think About It: Podcasts on Free Speech
- FREE SPEECH 47: With Freedom Comes Responsibility, with Ekow Yankah: “Professor Ekow Yankaw explains how we can maintain our freedom and liberty when living in society [sic] with others. How are our rights and duties interwoven in a republic? Can the government take a role in guaranteeing these rights but also enforcing these duties? Have we — in today’s America — lost the register that says that we have obligations toward others, and that being part of a republic means being bound together in a common enterprise?” 3/21/2019 Free View in iTunes
- FREE SPEECH 46: Safe Spaces, Trigger Warnings, and Free Speech, with Alexander Tsesis: “Does allowing hate speech serve the function to get such ideas into the open where they can be defeated? How do we understand ‘trigger warnings’ and safe spaces from a free-speech perspective? Do existing legal guidelines on regulating speech work for universities? How do we balance the right to speak with the right to participate in open and robust debate? I spoke with Professor Alexander Tsesis who teaches at Loyola University’s School of Law in Chicago.” 3/13/2019 Free View in iTunes
- FREE SPEECH 45: Staying Media-Savvy in an Age of Distrust with Pamela Newkirk: “What does it mean to be media-savvy? What is the truth in a post-factual era? How can we achieve basic media literacy in an age when telling lies has become a method to undermine our faith in facts? I spoke with Pamela Newkirk about maintaining the right kind of skepticism toward the media in an age when the independent press is under attack. Newkirk is a widely published journalist and scholar who holds an appointment as Professor in the Department of Journalism at New York University.” 3/13/2019 Free View in iTunes
- FREE SPEECH 42: Must Columbus Fall!?? with Jack Tchen: “Should Columbus Fall? Should the statue be toppled, and should Columbus Circle be renamed while we’re at it? In 2017 New York City’s Mayor, Bill de Blasio, charged a high-profile commission with the task of determining what to do about the statue of Columbus and a few other figures that generate heated debates. Professor Jack Tchen, the author of Yellow Peril and a co-founder of New York City’s Museum of Chinese in America, talks about the controversy and how the committee responded.” 1/28/2019 Free View in iTunes
→ Plus many more podcasts: Go here.
- Go here.
2018–2019 Term: Free Expression & Related Cases
Pending: Cert. Petitions
- 1A Auto, Inc. v. Sullivan
- Missouri Ethics Commission, et al. v. Free and Fair Election Fund
- Knox v. Pennsylvania
- Uradnik v. Inter Faculty Organization
- In-and-Out Burger v. NLRB
- The Colorado Independent v. District Court
- Township of Millburn v. Palardy
- Tate v. United States
- Abbott, et al. v. Pastides (reply brief here)
- Utah Republican Party v. Cox
- McKee v. Cosby, Jr. (Thomas, J., concurring in denial of cert. with opinion)
- Kennedy v. Bremerton School District
- Lair v. Motil
- Lair v. Mangan
- Berninger v. FCC (net neutrality)
- Montanans for Community Development v. Mangan
- Zimmerman v. Austin
- Township of Millburn v. Palardy
FOIA: Review Granted
Free Expression Related Cases: Review Granted
- Nieves v. Bartlett (probable cause, first amendment, and retaliation)
Review Granted: Free Expression Related Cases
- Manhattan Community Access Corp. v. Halleck (transcript of oral arguments)
- Rucho v. Common Cause (standing and gerrymandering) (transcript of oral arguments)
Pending Free Expression Related Cases
- Woodhull Freedom Foundation v. United States (Art. III, standing)
Last Scheduled FAN