The following commentary is by Ira Glasser, who served as the executive director of the American Civil Liberties Union from 1978 to 2001.
Robert Corn-Revere’s recent analysis of the Disney controversy is, in my view, exactly right, and I commend it. I imagine many liberals would agree with him, and that many conservatives would not. Herein lies an irony.
Citizens United v. Federal Election Commission (2010) held that corporations’ speech was protected by the First Amendment. Liberals generally hated that holding (see e.g. Floyd Abrams, “Citizens United and Its Critics,” Yale L. J. Forum), while conservatives applauded it (see e.g. amicus brief of Pacific Legal Foundation in Citizens United).
Now Disney, a corporation, speaks in a manner pleasing to liberals and displeasing to conservatives. What, respectively, would they make of the Citizens United holding now?
Citizens United involved a statute that restricted electoral advocacy but its restrictions were intended to apply, and in practice did apply, far more broadly to reach advocacy that was not electoral but took place in an election year (e.g., the ACLU’s criticism of an elected official who was also a candidate running for re-election).
Remember that Citizens United was not a business corporation like Disney, but an incorporated-cause organization criticizing Hillary Clinton, much as the ACLU was an incorporated-cause organization that criticized Richard Nixon, or Donald Trump.
As usual, after the Citizens United decision, many on both sides focused on the content of the speech being restricted (and not on the content-neutral principles of the First Amendment) in determining whether they liked the Citizens United holding or hated it.
So what now, liberals and conservatives? Do you support Florida’s speech-restrictive act against the Disney corporation? Or do you oppose it?
And what if when Ron DeSantis runs for president and the Disney corporation decides to run ads opposing his election? Will liberals oppose Disney’s corporate electoral advocacy, and denounce Citizens United for permitting it? And will conservatives supporting DeSantis change their position on Citizens United and call for restrictions on corporate speech?
These are the difficulties encountered when First Amendment principles are forsaken for content-driven ones.
Just before Mr. Glasser completed his commentary, the op-ed listed below was published:
- Burt Neuborne & Erwin Chemerinsky, “No, Ron DeSantis’ battle with Disney isn’t just political grandstanding,” San Francisco Chronicle (May 2) (excerpt):
We think the Supreme Court was wrong in Citizens United when it granted full free speech rights to corporations like Disney. Nor are we fans of delegating government powers to profit-driven corporations. But, as long as corporations continue to function as powerful First Amendment speakers, the worst thing we could do is empower an all-powerful regulatory state to turn corporate speakers into mouthpieces for the government by punishing them for failing to toe the party-line. That’s how Vladimir Putin rules Russia.
Below is Mr. Glasser’s response to the Neuborne-Chemerinsky op-ed:
Unsurprisingly, my former colleagues Burt Neuborne and Erwin Chemerinsky and I have the same view on the unconstitutionality of what Gov. DeSantis has tried to do by punishing the Disney company for opposing legislation limiting discussion of gay issues in Florida’s public schools. They say, and I agree, that what DeSantis is trying to do to Disney violates the First Amendment.
But they also say that they think “the Supreme Court was wrong in Citizens United when it granted full free speech rights to corporations like Disney.”
So their support for the First Amendment right of Disney to criticize the legislation barring discussion of gay issues is only because of a Supreme Court decision holding that corporations have free speech rights. They regret that, but as long as they do, they say, Florida should not be able to engage in viewpoint discrimination.
What if Citizens United had been decided the way Neuborne and Chemerinsky wanted, that is, by holding that corporations don’t have “full free speech rights?” Would they then think DeSantis could punish Disney for its opposition to the legislation barring discussion of gay issues? Is it their position that it violates the First Amendment to bar corporate speech selectively, but it doesn’t violate the First Amendment to bar all corporate speech on political issues?
Finally, they, perhaps slyly, say they oppose the Citizens United decision, which they characterize as granting “full free speech rights to corporations like Disney.” (emphasis added). But as they well know, the law that the Citizens United case struck down didn’t just restrict the speech of corporations “like Disney” but also of corporations like the ACLU, the NAACP, Planned Parenthood, incorporated organizations advocating gay rights, and, yes, Citizens United, all of them cause organizations.
If the law that Citizens United struck down had been upheld, all those corporations would have had their speech restricted.
And allowing the government to pass laws restricting all corporate speech — which would have resulted if the law Citizens United struck down had instead been upheld — is not a First Amendment-friendly position.
On Friday, Floyd Abrams will offer his own views on the exchange.
The case is Shurtleff v. Boston. The issue raised in the case was whether Boston’s selective flag-raising program violated the First Amendment or whether it constituted permissible government speech. The judgment of the Court (9-0) was in favor of the Petitioner’s First Amendment free speech challenge. Justice Breyer wrote for the majority; Justice Kavanaugh filed a concurring opinion Justice Alito filed an opinion concurring in the judgment (joined by Justices Thomas and Gorsuch); and Justice Gorsuch filed an opinion concurring in the judgment (joined by Justice Thomas).
Two different interpretations of the government speech doctrine
→ On the one hand, Justice Breyer (joined by five Justices) employed a fact-bound contextual test:
Our review is not mechanical; it is driven by a case’s context rather than the rote application of rigid factors. Our past cases have looked to several types of evidence to guide the analysis, including:  the history of the expression at issue;  the public’s likely perception as to who (the government or a private person) is speaking; and  the extent to which the government has actively shaped or controlled the expression. (emphasis added)
→ On the other hand, Justice Alito (joined by two Justices) employed an identity-of-the-speaker test:
To prevent the government-speech doctrine from being used as a cover for censorship, courts must focus on the identity of the speaker. The ultimate question is whether the government is actually expressing its own views or the real speaker is a private party and the government is surreptitiously engaged in the “regulation of private speech.”
[ . . . ]
In my view, the minimum conditions that must be met for expression to count as “government speech” can be identified by considering the definition of “government speech” and the rationale for the government-speech doctrine. Under the resulting view, government speech occurs if — but only if — a government purposefully expresses a message of its own through persons authorized to speak on its behalf, and in doing so, does not rely on a means that abridges private speech.
Defined in literal terms, “government speech” is “speech” spoken by the government. “Speech,” as that term is used in our First Amendment jurisprudence, refers to expressive activity that is “intended to be communicative” and, “in context, would reasonably be understood . . . to be communicative.”
Earlier this week the Court denied cert. in:
- Clear Channel Outdoor, LLC v. Raymond (upholding a municipal tax singling out billboards)
- City of Cincinnati v. Lamar Advantage Co. (invalidating a municipal tax singling out billboards)
The issue in both cases was whether a tax singling out off-premises billboards is subject to heightened scrutiny under the First Amendment. Despite the conflicting First Amendment holdings of the two state courts, the Justices denied review in both of them.
Abrams and Hasen podcast Re: Elon Musk and Twitter
- “I Spoke to First Amendment Icon Floyd Abrams on His ‘Speaking Freely’ Podcast About Elon Musk’s Purchase of Twitter, Election Disinformation, and Cheap Speech,” Election Law Blog (April 26)
Bérubé & Ruth on ‘rethinking the parameters and practices of academic freedom’
- Michael Bérubé & Jennifer Ruth, “It’s Not Free Speech: Race, Democracy, and the Future of Academic Freedom” (Johns Hopkins University Press, April 26, 2022)
How far does the idea of academic freedom extend to professors in an era of racial reckoning?
The protests of summer 2020, which were ignited by the murder of George Floyd, led to long-overdue reassessments of the legacy of racism and white supremacy in both American academe and cultural life more generally. But while universities have been willing to rename some buildings and schools or grapple with their role in the slave trade, no one has yet asked the most uncomfortable question: Does academic freedom extend to racist professors?
It’s Not Free Speech considers the ideal of academic freedom in the wake of the activism inspired by outrageous police brutality, white supremacy, and the #MeToo movement. Arguing that academic freedom must be rigorously distinguished from freedom of speech, Michael Bérubé and Jennifer Ruth take aim at explicit defenses of colonialism and theories of white supremacy―theories that have no intellectual legitimacy whatsoever. Approaching this question from two angles―one, the question of when a professor’s intramural or extramural speech calls into question his or her fitness to serve, and two, the question of how to manage the simmering tension between the academic freedom of faculty and the anti-discrimination initiatives of campus offices of diversity, equity, and inclusion―they argue that the democracy-destroying potential of social media makes it very difficult to uphold the traditional liberal view that the best remedy for hate speech is more speech.
In recent years, those with traditional liberal ideals have had very limited effectiveness in responding to the resurgence of white supremacism in American life. It is time, Bérubé and Ruth write, to ask whether that resurgence requires us to rethink the parameters and practices of academic freedom. Touching as well on contingent faculty, whose speech is often inadequately protected, It’s Not Free Speech insists that we reimagine shared governance to augment both academic freedom and antidiscrimination initiatives on campuses. Faculty across the nation can develop protocols that account for both the new realities―from the rise of social media to the decline of tenure―and the old realities of long-standing inequities and abuses that the classic liberal conception of academic freedom did nothing to address. This book will resonate for anyone who has followed debates over #MeToo, Black Lives Matter, Critical Race Theory, and “cancel culture”; more specifically, it should have a major impact on many facets of academic life, from the classroom to faculty senates to the office of the general counsel.
New scholarly article on ‘chilling effects’ doctrine
I . Conventional Theories
- Chilling Effects as Fear of Legal Harm
- Chilling Effects as Fear of Privacy Harm
- The Limits of Deterrence-Based Theories
II. A Social Conformity Theory of Chilling Effects
- Social Chilling Effects
- Situational Uncertainty, Social Norms, and Conformity
- Chilling Effects as Social Conformity
- Legal / Regulatory / Statutory Chill
- Surveillance / Data Collection Chill
- Personalized Law / Threats / Enforcement Chill
- Social Media Chill and Disinformation /
III. Benefits / Implications of this Theory
A. Clarifying What Chilling Effects Theory Is For
1. What Chilling Effects Produce
2. Law’s Multidimensional Role in Addressing
3. Chilling Effects and Surveillance Capitalism
- The Chilling Effects Curve: Explanatory / PredictivePower
- Navigating Competing / Differing Chilling Effect Claims
- Legal and Constitutional Implications
Clay Calvert on anti-deplatforming statutes
- Clay Calvert, “First Amendment Battles over Anti-Deplatforming Statutes: Examining Miami Herald Publishing Co. v. Tornillo’s Relevance for Today’s Online Social Media Platform Cases,” New York University Law Review (2022)
Florida adopted a statute in 2021 barring large social media sites from deplatforming—removing from their sites—candidates running for state and local office. Soon thereafter, Texas adopted its own anti-deplatforming statute. A trade association representing several major social media companies is now challenging the laws in federal court for violating the platforms’ First Amendment speech rights.
A central issue in both NetChoice, LLC v. Moody (targeting Florida’s statute) and NetChoice, LLC v. Paxton (attacking Texas’s law) is the significance of the U.S. Supreme Court’s 1974 decision in Miami Herald Publishing Co. v. Tornillo. In Tornillo, the Court struck down a Florida statute that compelled print newspapers that published attacks on political candidates’ character or record to provide access in their pages for those political candidates’ replies.
This Article examines the relevance of Tornillo’s aging precedent in conferring print newspapers with a right of editorial autonomy and a right not to be compelled to speak in today’s social media, anti-deplatforming cases. The Article avers that while Tornillo may help the platforms with their legal challenges, its impact is cabined by several crucial factual and legal distinctions. The Article concludes that dicta regarding both access and social media platforms in the U.S. Supreme Court’s 2017 decision in Packingham v. North Carolina could play a surprising role in pushing back against Tornillo.
New scholarly article on professional speech
- Cassandra Burke Robertson & Sharona Hoffman, “Professional Speech at Scale,” U.C. Davis Law Review (2022)
Regulatory actions affecting professional speech are facing new challenges from all directions. On one side, the Supreme Court has grown increasingly protective of professionals’ free speech rights, and it has subjected regulations affecting that speech to heightened levels of scrutiny that call into question traditional regulatory practices in both law and medicine. On the other side, technological developments, including the growth of massive digital platforms and the introduction of artificial intelligence programs, have created brand new problems of regulatory scale. Professional speech is now able to reach a wide audience faster than ever before, creating risks that misinformation will cause public harm long before regulatory processes can gear up to address it.
This Article examines how these two trends interact in the fields of health- care regulation and legal practice. It looks at how these forces work together both to create new regulatory problems and to shape the potential government responses to those problems. It analyzes the Supreme Court’s developing case law on professional speech and predicts how the Court’s jurisprudence is likely to influence current legal challenges in law and medicine. The Article further examines the regulatory challenges posed by the change in scale generated by massive digital platforms and the introduction of artificial intelligence. It concludes by recommending ways in which government regulators can meet the new challenges posed by technological development without infringing on constitutionally protected speech. The crux of our proposal is that incremental change in the traditional state regulatory process is insufficient to meet the challenges posed by technological developments. Instead, it is time to ask bigger questions about the underlying goals and first principles of professional regulation.”
George Carlin clip
- Rick Hasen, “Breaking: Supreme Court, with No Noted Dissents, Turns Down Major Petition on Whether Corporations Have a Constitutional Right to Make Contributions Directly to Candidates,” Election Law Blog (May 2)
- Jeffrey Rosen, “Elon Musk Is Right That Twitter Should Follow the First Amendment,” The Atlantic (May 2)
- Alexandra Alter, “How a Debut Graphic Memoir Became the Most Banned Book in the Country,” The New York Times (May 2)
- “Ariz. judge tosses lawsuit against Democratic lawmaker,” Associated Press (May 2)
- Breck Dumas, “New ‘Big Tech Scorecard’ shows most firms threaten free speech,” Fox Business (May 2)
- “Trucker convoy members sue DC for violating First Amendment free speech rights,” WUSA9 (May 2)
2021-2022 SCOTUS term: Free expression & related cases
- Shurtleff v. Boston (First Amendment claim affirmed)
- Houston Community College System v. Wilson (First Amendment claim denied)
- City of Austin, Texas v. Reagan National Advertising of Texas Inc. (First Amendment claim denied)
- City of Austin, Texas v. Reagan National Advertising of Texas Inc.
- Federal Election Commission v. Ted Cruz for Senate
- Shurtleff v. Boston
- Kennedy v. Bremerton School District
- 303 Creative LLC v. Elenis
- Romeril v. Securities and Exchange Commission
- Marshall v. Supreme Court of the State of New Mexico
- Smith v. United States
- Edgar et al. v. Haines
- American Society of Journalists v. Bonta
- Arlene’s Flowers Inc. v. Washington (petition for rehearing)
- Lundergan v. United States
- Clear Channel Outdoor, LLC v. Raymond
- City of Cincinnati v. Lamar Advantage Co.
- Kelly v. Animal Legal Defense Fund
- Green v. Pierce County
- Burns v. Town of Palm Beach
- Gilbert v. United States
- Roberson v. United States
- Woods v. Alaska State Employee Association
- Lamoureux v. Montana
- Asociación de Periodistas de Puerto Rico v. Commonwealth of Puerto Rico
- John K. MacIver Institute for Public Policy, Inc., et al. v. Evers
- Project Veritas Action Fund v. Rollins
- Troesch v. Chicago Teachers Union, et al.
- Dignity Health v. Minton
- Pace v. Baker-White
- Tah v. Global Witness Publishing, Inc.
- American Civil Liberties Union v. U.S.
- Frasier v. Evans (First Amendment and qualified immunity)
- Louisiana v. Hill
- Baisley v. International Association of Machinists and Aerospace Worker
- Crowe v. Oregon State Bar
- Boardman v. Inslee
- Pasadena Republican Club v. Western Justice Center, et al.