When it comes to organizing and editing timely and important books on freedom of expression, Geoffrey Stone and Lee Bollinger make for an impressive duo. Simply consider three of their previous works: “National Security, Leaks and Freedom of the Press: The Pentagon Papers Fifty Years On” (2021), “The Free Speech Century” (2018), and “Eternally Vigilant: Free Speech in the Modern Era” (2002). Now they have ventured upon what may be the most ambitious of all of their publishing projects by way of an edited book titled “Social Media, Freedom of Speech, and the Future of our Democracy” (Oxford University Press, 2022).
One of the most fiercely debated issues of this era is what to do about “bad” speech-hate speech, disinformation and propaganda campaigns, and incitement of violence on the internet, and in particular speech on social media platforms such as Facebook and Twitter. In “Social Media, Freedom of Speech, and the Future of our Democracy,” Lee C. Bollinger and Geoffrey R. Stone have gathered an eminent cast of contributors[.]
- Lee Bollinger & Geoffrey Stone
Regulating Harmful Speech on Social Media: The Current Legal Landscape and Policy Proposals
- Andrew J. Ceresney, Jeffrey Cunard, Courtney Dankworth, and David A. O’Neil
Part One: An Overview of the Problem
- Renée Diresta: “Algorithms, Affordances and Agency”
- Evelyn Douek: “The Siren Call of Content Moderation Formalism”
- Jamal Greene: “Free Speech on Public Platforms”
- Genevieve Lakier: “The Limits of Andiscrimination Law In the Digital Public Spehere”
- Nathaniel Persily: “Platform Power, Online Speech, and the Search for New Constitutional Categories”
- Kate Starbird: “Strategy and Structure: Understanding Online Disinforamtion and How Commitments to ‘Free Speech’ Complicate Mitigation Approaches”
Part Four: Other Possible Reforms
- Jack Balkin: “To Reform Social Media, Reform Informational Capitalism”
- Yochai Benkler: “Follow the Money, Back to Front”
- Lawrence Lessig: “The First Amendment Does Not Protect Replicants”
- Newt Minow, Nell Minow, Martha Minow & Mary Minow: “Social Media, Distrust, and Regulation: A Conversation”
- Amy Klobuchar: “Profit Over People: How to Make Big tech Work for Americans”
Report of the Commission
- Katherine Adams, Jelani Cobb, Martin Baron, Russ Feingold, Lee Bollinger, Christina Paxson, Hillary Clinton, and Geoffrey Stone
[These authors] explore the various dimensions of this problem in the American context. They stress how difficult it is to develop remedies given that some of these forms of “bad” speech are ordinarily protected by the First Amendment. Bollinger and Stone argue that it is important to remember that the last time we encountered major new communications technology-television and radio-we established a federal agency to provide oversight and to issue regulations to protect and promote “the public interest.”
Featuring a variety of perspectives from some of America’s leading experts on this hotly contested issue, this volume offers new insights for the future of free speech in the social media era.
- Ruth Reader & Ben Leonard, “Congress is closer than ever to reining in social media,” Politico (Aug. 3)
- “Stone and Bollinger to Edit Major Book on Leaks, National Security, and Freedom of the Press — Distinguished Lineup of Contributors, FAN 222 (Sept. 4, 2019)
Three other forthcoming books in the Oxford Series edited by Bollinger and Stone
Lee C. Bollinger & Geoffrey R. Stone, “Reckoning with America’s Long History of Racism and the Essential Constitutionality of Affirmative Action”
Nathan S. Chapman & Michael W. McConnell, “Agreeing to Disagree: How the Establishment Clause Protects Religious Diversity and Freedom of Conscience”
David E. Pozen, “The Constitution of the War on Drugs”
YouTube: Noah Feldman on free speech rights on social media
- Tim Ferriss, “Harvard Polymath Noah Feldman on Free Speech Rights,” YouTube (July 2022)
Draft South Carolina anti-abortion bill raises First Amendment questions
- Lars Lonnroth, “Draft version of SC abortion bill raises concern among First Amendment experts,” WFAE 90.7 (Aug. 1)
A bill making its way through the South Carolina legislature would place a near-total ban on abortions, prohibiting the procedure except in cases where the life of the mother is at risk.
The measure, a draft of which is currently being considered by the state senate’s Medical Affairs Committee, would also criminalize helping a person obtain an abortion — including providing information about how to obtain an abortion. Under the current bill draft, a person who provides information could be prosecuted if they know the information “will be used, or is reasonably likely to be used for an abortion” — and could face up to 25 years in prison.
[ . . . ]
“This particular law is constitutionally overbroad,” Eugene Volokh, a law professor at the University of California, Los Angeles who specializes in First Amendment law, said. “It covers speech that is constitutionally protected.”
According to Volokh, the “aiding and abetting” portion of the draft bill would have more legal standing if it was narrowly focused on illegal abortions in the state.
“If abortion is illegal and Supreme Court has said that it could be made illegal, then that does allow punishing at least certain kinds of speech related to abortion — just like this is true with all crimes,” he said.
Lukianoff on canceling Dave Chappelle
- Greg Lukianoff, “No, Canceling Chappelle Is Not a ‘Win for Free Speech’,” Newsweek (Jul 25)
Imagine these headlines:
Salman Rushdie dumped by publisher after The Satanic Verses offends the Ayatollah of Iran. Victory for free expression!
Lenny Bruce’s sold-out show in New York City canceled after religious staffers at the club decry foul language. Victory for artistic expression!
Prince concert canceled after Tipper Gore complains about vulgar lyrics in “Darling Nikki.” Victory for free speech!
You’d have to have a pretty odd sense of history to consider any of those could-have-been scenarios as victories for freedom of expression. Yet a surprising number of people are asserting exactly that when it comes to a Minneapolis venue called First Avenue that canceled Dave Chappelle’s comedy show this week.
Volokh on private-employer-imposed speech restrictions
- Eugene Volokh, “Should the Law Limit Private-Employer-Imposed Speech Restrictions? Some Other Reasons Why,” The Volokh Conspiracy (Aug. 3)
As I mentioned yesterday, ten years ago I wrote a descriptive and analytical law review article called Private Employees’ Speech and Political Activity: Statutory Protection Against Employer Retaliation, which aimed to catalog these often-little-known statutes. This year, I’m returning to the subject, trying to analyze the strongest arguments for and against such statutes. The article (Should the Law Limit Private-Employer-Imposed Speech Restrictions?) will be published later this year in a Journal of Free Speech Law symposium issue, together with other articles that stemmed from an Arizona State symposium on Non-Governmental Restrictions on Free Speech; and this week and next I’d like to serialize it here.
Yesterday, I blogged the Introduction and the beginning of the argument in favor of such statutes, focused on the democratic self-government theory of the First Amendment; today, I add a discussion of the search for truth, self-expression, and autonomy theories, plus a bit on negative theories. Future posts will also of course cover the arguments against such statutes (and you can see the arguments right now, if you’d like, by looking at the PDF of the article).
Early state laws prohibited musical desecration of the national anthem
- John R. Vile, “National Anthem, Government Regulation,” The First Amendment Encyclopedia (2022)
How today’s speech norms launch old inquisitions
- William Harris, “Comeback of the catechism: When today’s speech norms launch old inquisitions,” FIRE (Aug. 3)
The consequences of American “cancel culture” for artistic freedom and civil liberties are often minimized and dismissed by public figures for not rising to sufficiently injurious levels. “Cancel culture,” they claim, “in the terms it is culturally viewed in, does not exist.”
There aren’t any Americans being put to death or tortured as a consequence for speech, talking heads reason, as if free expression in-and-of-itself is not a human right (it is). “This isn’t the Spanish Inquisition,” they argue, excusing a trend that Americans largely oppose by claiming that “careers are not destroyed.”
Champions of “cancel culture” may claim it does not cause people to lose their jobs, but such contentions are nothing more than “alternative facts” which the record clearly demonstrates to be false. Those who instigate, excuse, or support modern-day censorship, while often insisting social progress is their goal, ignore how unenlightened and backwards their actions actually are. Their eager dismissals of an issue so elemental to democracy itself — one’s very ability and willingness to speak — are historically uninformed and naively short-sighted.
The Spanish Inquisition wasn’t always “The Rack,” “The Wheel,” and the torture chamber. In fact, in its later years, as Europe underwent Enlightenment, the Inquisition’s consequences came to resemble the comparatively mild punishments doled out by American “cancel culture” today: Threats to professional reputation and employment, pervasive self-censorship, and widespread environs of chilled speech, particularly in the artistic realm.
[ . . . ]
Antiquated morals have been refashioned for contemporary tastes, but this does not not make them any less nefarious. “Cancel culture” is nothing new, and the truth about today’s in-vogue rebrand of old-fashioned inquisitorial morals is simple: “Cancel culture cancels culture.” If we want to collectively pursue truth and beauty in a society that cultivates intellectual enlightenment and the artistic sublime, we must see through the emperor’s new clothes and condemn “cancel culture” for the anti-intellectual, moralistic parochialism that it is.
- Michael Tarn, “Is Alex Jones’ trial about free-speech rights?,” Associated Press (Aug. 3)
- Heather Morrison, “NH group’s Christian flag to be raised at Boston City Hall Plaza Wednesday after Supreme Court First Amendment case,” Union Leader (Aug. 2)
- Ed White, “Mich. prof who made vulgar video quits, settles for $95K,” Associated Press (Aug. 1)
- “California School Board Trustees Lose Suit Over Blocking Users on Social Media,” First Amendment Watch (July 29)
- “Repressive executive order from UNC Chapel Hill student government cuts off funding for pro-life individuals, causes,” FIRE (July 28)
- Barnaby Zall, “Important First Amendment Supreme Court Decision Cruises Under the Radar,” Institute for Free Speech (July 21)
2021-2022 SCOTUS term: Free expression & related cases
- Kennedy v. Bremerton School District (Gorsuch: First Amendment claim affirmed)
- Federal Election Commission v. Ted Cruz for Senate (Roberts: First Amendment claim affirmed)
- Shurtleff v. Boston (Breyer: First Amendment claim affirmed)
- Houston Community College System v. Wilson (Gorsuch: First Amendment claim denied)
- City of Austin, Texas v. Reagan National Advertising of Texas Inc. (Sotomayor: 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
- 303 Creative LLC v. Elenis
First Amendment-related petitions
- Outdoor One Communications LLC v. Charter Township of Canton, Michigan (cert. denied)
- Egbert v. Boule (rejecting Bivens cause of action for First Amendment retaliation claim)
- Arlene’s Flowers Inc. v. Washington (petition for rehearing)
Applications for stay orders
- Netchoice v. Paxton (application denied)
- Romeril v. Securities and Exchange Commission
- American Society of Journalists v. Bonta
- Smith v. United States
- Marshall v. Supreme Court of the State of New Mexico
- Edgar et al. v. Haines
- 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.