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Abandoned love: The left’s move away from the right’s First Amendment — First Amendment News 386

Lorie Smith, owner of 303 Creative, speakings in front of the Supreme Court

Alliance Defending Freedom

Lorie Smith, owner of 303 Creative, speaks in front of the Supreme Court building in Washington, D.C.

“[A] decision in petitioner’s favor . . . would permit the First Amendment to supersede laws of general application that are important for our society to function, without advancing First Amendment goals. . . . Allowing 303 Creative to discriminate on the basis of the First Amendment’s protections would necessarily open the door to conflicts between such ‘expressive’ interests and other laws of general application, unsettling the law in multiple ways.”

Amicus brief filed on behalf of Vincent Blasi, Erwin Chemerinsky, Burt Neuborne, Robert Post, Kermit Roosevelt, Amanda Shanor, Geoffrey R. Stone and Laura Weinrib.

Justice Neil Gorsuch’s majority opinion in 303 Creative LLC v. Elenis (2023) will live on in infamy in many liberal minds. This 6-3 opinion is one of the latest in a predictable line of conservative rulings designed to upend liberal precedents, this time those concerning LGBTQ rights. For example, consider what Laurence Tribe and Jeffrey B. Abramson said about the matter:

By twisting free speech into a license to discriminate, the [303 Creative] court has now carved out an exception from public accommodations law for businesses that recast their services in ways that highlight their expressive features. But the court offers no workable principle to cabin that exception in any meaningful way. . . . The hostility of a majority of justices to the 2015 Supreme Court case protecting same-sex marriage is so open that, until they can follow Justice Clarence Thomas’s call to overrule that decision, they are determined to strip same-sex couples of civil rights protections that other lawfully married couples enjoy. 

303 Creative also marks yet another liberal breakaway from what was long thought to be one of the mainstays of liberal constitutionalism — the free speech principle championed by the liberal likes of Brandeis and Brennan and hailed in the scholarly works of Emerson and Kalven. But those days are ending as more and more liberals view the Roberts Court’s jurisprudence as a way, in Justice Elena Kagan’s dissenting words, of “weaponizing the First Amendment.”

“More than 20 states, including New York and California, have anti-discrimination laws like Colorado’s. By creating a free speech carve-out from these laws, the court’s ruling threatens to obliterate a vital tool in efforts to protect the L.G.B.T.Q. community at a time when it faces hatred and violence.”

Aaron Tang, The New York Times (July 1)

See also: Ben Clements, “The Roberts Court twisted the First Amendment into a tool of discrimination,” The Hill (July 8).

For a supportive take on Justice Gorsuch’s opinion, see: Darpana Sheth, “Myth-busting reactions to the Supreme Court’s decision in 303 Creative v. Elenis,” FIRE (July 7). 

See also: John Eastman and Anthony T. Caso, amicus brief filed in support of petitioners

If one had to pinpoint a time when the left began to lose faith in First Amendment free speech absolutism (or near absolutism), it might have been with the Nazis marching in Skokie cases (Village of Skokie v. National Socialist Party (Ill., 1978) and Collin v. Smith (7th Cir., 1978). That controversy certainly divided the ACLU’s membership. See: “When the Nazis Came to Skokie,” Philippa Strum (1999).

If one had to pinpoint a time when the right began to gain faith in the First Amendment, it might have been with the commercial speech cases, especially ones such as 44 Liquormart v. Rhode Island (1996) (see e.g. Thomas, J., concurring). (Contrast C. Edwin Baker, “The First Amendment and Commercial Speech,” Indiana Law Journal (2009).) There were also cases such as Harris v. Quinn (2014) and Janus v. American Federation of State, County and Municipal Employees (2018) in which the First Amendment was used to disempower labor unions.

The left took its leave when the free speech principle trumped the anti-discrimination principle, and when libertarian values redefined the political power dynamic. By the same token, the right openly embraced the free speech principle when it served the interests of laissez-faire capitalism. 

The equality principle of free speech (once championed in Police Dep’t. of the City of Chicago v. Mosley (1972)), has fallen on difficult times when one considers some of the First Amendment gay rights cases the Court has handed down: e.g., Boy Scouts of America v. Dale (2000), Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018), and more recently 303 Creative LLC v. Elenis (2023) and Klein v. Oregon Bureau of Labor and Industries (2022). For many liberals, the First Amendment is a device by which conservative jurists can dismantle the Court’s landmark LGBTQ rulings. 

On the other side of the ideological divide — and to conservatives’ delight — the libertarian tenet of the First Amendment has done quite well when one considers certain commercial speech cases (e.g., Thompson v. Western States Medical Center (2002); and Sorrell v. IMS Health, Inc. (2011)) and virtually all the campaign finance cases (e.g., Citizens United v. FEC (2010); and McCutcheon v. FEC (2014). Here too, such rulings have been met with liberal outrage.

More, of course, needs to be said on the liberal abandonment and the conservative endorsement of 303 Creative-like rulings (both on the expression and religion sides), but that is the stuff of forthcoming posts — so stay tuned! — rklc


Headline: ‘Concerns Raised on Judge’s Injunction Against Government Communications with Social Media Platforms’

That was the title of Susanna Granieri’s post over at First Amendment Watch. Here are a few excerpts:

A federal judge in Louisiana granted a preliminary injunction July 4 blocking the Biden administration and key government agencies from communicating with major social media platforms about user content the sites host — a ruling which could result in major First Amendment implications.

The order, written by Judge Terry A. Doughty — a Donald Trump appointee — upends the government’s efforts to curtail troublesome speech online. The mis- and disinformation on major platforms grew exponentially during the 2016 presidential election and the coronavirus pandemic, which led the government to regularly communicate its concerns with major social media platforms that hosted the speech of millions of Americans.

Judge Terry A. Doughty
Judge Terry A. Doughty

[ . . . ]

Judge Doughty’s ruling raised concern among some First Amendment scholars. The opinion includes facts that “raise serious constitutional questions,” tweeted Jameel Jaffer, executive director of the Knight First Amendment Institute at Columbia University. ‘But his order would insulate social media [companies] from criticism, not just coercion. He should narrow the order, or the appeals court should do it for him,” he wrote.

[ . . . ]

Lyrissa Lidsky, First Amendment lawyer and professor at the University of Florida Levin College of Law, said it appears the government may have gone “beyond jawboning to implicit coercion of social media companies” as a way “to censor disfavored content.”

“Some of that content may be ‘disinformation,’ but the danger is that some of it is simply content the government doesn’t like or finds embarrassing,” she said. “The litigation is important as a tool to uncover the extent to which the government is pressuring, and perhaps coercing, censorship by the social media companies that provide millions of us with access to the digital public square.” However, Lidsky added, “Judge Doughty’s gag order on government actors may reach too far in response to the threat.”

This from Eric Boehm over at Reason

Whether [any] systemic pressure campaign amounts to a violation of Americans' free speech rights is something courts still have to decide. It's not a straightforward issue, as government officials also have a free speech right to communicate with moderators at social media companies. When and how that communication becomes an attempt at chilling free speech—backed by an implicit threat of state action if the social media companies don't comply—are complex questions, and Tuesday's injunction is far from the final say in the matter.

This from Leah Litman and Laurence H. Tribe in “Restricting the Government from Speaking to Tech Companies Will Spread Disinformation and Harm Democracy” for Just Security (July 5):

Professor Leah Litman
Professor Leah Litman

While there are, in theory, interesting questions about when and how the government can try to jawbone private entities to remove speech from their platforms, this decision doesn’t grapple with any of them . . .

Invoking the First Amendment, a single district court judge effectively issued a prior restraint on large swaths of speech, cutting short an essential dialogue between the government and social media companies about online speech and potentially lethal misinformation. Compounding that error, the district court crafted its injunction to apply to myriad high-ranking officials in the Biden administration, raising grave separation of powers concerns. And equally troubling is how the court’s order, which prevents the government from even speaking with tech companies about their content moderation policies, deals a huge blow to vital government efforts to harden U.S. democracy against threats of misinformation.


Another defamation suit headed Fox’s way?

Of all the distortions and paranoia that Tucker Carlson promoted on his since-canceled Fox News program, one looms large: a conspiracy theory that an Arizona man working as a covert government agent incited the Jan. 6, 2021, assault on the Capitol to sabotage and discredit former President Donald J. Trump and his political movement.

What’s known about the man — a two-time Trump voter named Ray Epps — is that he took part in demonstrations in Washington that day and the night before . . .

Federal prosecutors have not charged Mr. Epps with a crime, focusing instead on the more than 1,000 other demonstrators who acted violently or were trespassing in the Capitol. The Justice Department’s sprawling investigation into the attack remains open, however, and Mr. Epps could still be indicted.

Michael J. Teter - lawyer for Ray Epps
Michael J. Teter (lawyer for Ray Epps)

Yet for more than 18 months, Mr. Carlson insisted that the lack of charges against Mr. Epps could mean only one thing: that he was being protected because he was a secret government agent. There was “no rational explanation,” Mr. Carlson told his audience, why this “mysterious figure” who “helped stage-manage the insurrection” had not been charged. He repeated Mr. Epps’s name over and over — in nearly 20 episodes — imprinting it on the minds of his viewers.

[ . . . ]

Now lawyers representing Mr. Epps and his wife are proceeding with plans to sue Fox News for defamation. “We informed Fox in March that if they did not issue a formal on-air apology that we would pursue all available avenues to protect the Eppses’ rights,” said Michael Teter, a lawyer for Mr. Epps who sent the network a cease-and-desist letter asking for an on-air apology and a retraction.

Lawyer disciplined for criticizing judge — Alex Kozinski to the defense 

“[S]tatements impugning the integrity of a judge may not be punished unless they are capable of being proved true or false; statements of opinion are protected by the First Amendment unless they ‘imply a false assertion of fact.’”

Judge Alex Kozinski (1995)


“This case [involving criticism of a judge] presents a textbook example of an opinion that is protected by the First Amendment . . .”

Attorney Alex Kozinski, 2023, brief on behalf of Petitioner Pavone

The case is In the Matter of Benjamin Laurence Pavone (Cal., #S-279851). It is a bar discipline case that tests the limits of how far a lawyer can go in criticizing a judge. Petitioner, Benjamin Pavone, is being represented by retired Ninth Circuit Judge Alex Kozinski.

Judge Alex Kozinski
Judge Alex Kozinski

The issues raised in the case are:

  1. Did Petitioner make provably false statements of fact about a judicial officer’s motivation and intellectual honesty?
  2. Did Petitioner disclose the basis for any statements that were provably false facts at the time, thereby entitling him to protection under the disclosure theory of Standing Committee on Discipline v. Yagman (9th Cir. 1995) 55 F.3d 1430, 1438, as adopted by California courts in Franklin v. Dynamic Details, Inc. (2004) 116 Cal. App. 4th 375, 386-88; and In the Matter of Anderson (Rev. Dept. 1997) 3 Cal. State Bar Ct. Rptr. 775, 781?
  3. May attorneys be disciplined based on judicial officers’ sworn testimony as to their internal thought process in issuing rulings?

Note: The Ninth Circuit Yagman majority opinion the Petitioner relies upon was authored by then-Judge Alex Kozinski. (Some of those who signed an amicus brief filed by American Jewish Congress-Pacific Southwest Region and Article 19 in support of the petitioner were: Ben Margolis, Erwin Chemerinsky, Susan R. Estrich, Barry A. Fisher, Catherine L. Fisk, Stanley Fleishman, Fred Okrand, Robert M. Ornstein, and Eugene Volokh.) 

Here are a few excerpts from Kozinski’s First Amendment arguments to the state high court:

First things first. The language just recounted from Petitioner’s opening and reply briefs is bad writing and poor advocacy. No one long in the business of persuading appellate courts believes you’re likely to get very far hurling rotten vegetables at the decision-maker or the decision-maker's colleagues. Petitioner’s writing was not a persuasive legal argument calculated to obtain the fees he believed he deserved. Indeed, it may be the worst advocacy among the thousands of briefs counsel has read over the years.

But Petitioner was not charged with incompetence and he hurt only himself: As any reasonable person would have expected, the Court of Appeal rejected Petitioner’s argument and affirmed the denial of fees and costs, whereas a more temperate brief may have prevailed.

The question presented by this petition is whether casting doubt on the intellectual

integrity of a judicial officer, after disclosing the facts on which those doubts are based, may be the subject of disciplinary sanctions. The Ninth Circuit long ago held that, as a matter of First Amendment law, such conduct could not be grounds for discipline. (Standing Comm. on Discipline of U.S. Dist. Ct. for Cent. Dist. of California v. Yagman (9th Cir. 1995)).

Ban lifted on father who questioned safety at Uvalde school

“Uvalde school district officials banned Adam Martinez from school property and school board meetings for two years.”

Foundation for Individual Rights and Expression

The Uvalde school district has lifted its ban on a concerned parent after the Foundation for Individual Rights and Expression stood up for his right to speak out at school board meetings.

The Uvalde Consolidated Independent School District banned Adam Martinez, a father of two students, from district property for two years for questioning the qualifications of a recently hired school district police officer. In May, FIRE sent a letter threatening to sue if the district did not lift the unconstitutional ban. Yesterday, the school district confirmed it is lifting the ban and Martinez is allowed on school property once again.

“All I’ve ever wanted was to speak my mind and be a voice for my community,” said Martinez. “I’m thankful to FIRE for taking my case, and look forward to holding our local leaders accountable.”

“FIRE was ready and willing to sue to protect Mr. Martinez’s First Amendment rights,” said FIRE attorney Conor Fitzpatrick. “Thankfully, the Uvalde school district backed down and lifted its unconstitutional ban.”

Toobin on Barbas and the future of NYT v. Sullivan

The case of New York Times v. Sullivan set a vital standard in libel law. Could the clash between Fox News and Dominion Voting Systems dismantle it—and at what cost?

The libel lawsuit filed in March 2021 by Dominion Voting Systems against Fox News, over the network’s coverage of claims that the company had rigged the 2020 election, was settled this spring, but the case may soon become an artifact of a vanished era. In pretrial skirmishing, the two sides agreed on this much: the law of libel is governed by the Supreme Court’s 1964 decision in New York Times v. Sullivan. In the last legal arguments before the jury was to be seated, Rodney A. Smolla, one of the lawyers for Dominion, called Sullivan “the landmark decision that is the genesis for all of our modern First Amendment principles involving defamation law.” Erin E. Murphy, a lawyer for Fox, likewise said that the principle governing the case “starts in Sullivan.” But the emboldened conservative majority on the Supreme Court, having dispatched Roe v. Wade to the dustbin of overruled precedents, may now target Sullivan for the same treatment. Such a change would have fundamental consequences for both those who speak and those who are spoken about.

It’s a fitting time, then, to take a fresh look at Sullivan — how it came about and what it means today. In Actual Malice: Civil Rights and Freedom of the Press in New York Times v. Sullivan, Samantha Barbas, a professor at the University of Buffalo School of Law, tells the improbable story of the advertisement that gave rise to the case and the decision that Justice William J. Brennan ultimately wrote. It’s a tale that has been told before — notably in books by Anthony Lewis and Aimee Edmondson — but Barbas has a distinctive and relevant argument.


Forthcoming book on free speech and misinformation

Thanks to the First Amendment, Americans enjoy a rare privilege: the constitutional right to lie. And although controversial, they should continue to enjoy this right.

When commentators and politicians discuss misinformation, they often repeat five words: "fire in a crowded theater." Though governments can, if they choose, attempt to ban harmful lies, propaganda, misinformation, and disinformation, how effective will their efforts really be? Can they punish someone for yelling "fire" in a crowded theater ― and would those lies then have any less impact? How do governments around the world respond to the spread of misinformation, and when should the US government protect the free speech of liars?

In Liar in a Crowded Theater, law professor Jeff Kosseff addresses the pervasiveness of lies, the legal protections they enjoy, the harm they cause, and how to combat them. From the COVID-19 pandemic to the 2016 and 2020 presidential elections and the January 6, 2021, insurrection on the Capitol building, Kosseff argues that even though lies can inflict huge damage, US law should continue to protect them. Liar in a Crowded Theater explores both the history of protected falsehoods and where to go from here.

Drawing on years of research and thousands of pages of court documents in dozens of cases ― from Alexander Hamilton's enduring defense of free speech to Eminem's victory in a lawsuit claiming that he stretched the truth in a 1999 song ― Kosseff illustrates not only why courts are reluctant to be the arbiters of truth but also why they're uniquely unsuited to that role. Rather than resorting to regulating speech and fining or jailing speakers, he proposes solutions that focus on minimizing the harms of misinformation. If we want to seriously address concerns about misinformation and other false speech, we must finally exit the crowded theater.

‘So to Speak’ podcast — Abolitionist speech in the Antebellum period

Last Constitution Day, we traced the origins of free speech in the United States from colonial America to the ratification of the Bill of Rights in 1791. In this episode, we jump forward to the antebellum period, where abolitionists such as Frederick Douglass, John Quincy Adams, William Lloyd Garrison, and Angelina Grimk? clashed with pro-slavery advocates over the monumental issue of slavery.

Journalist and author Damon Root, FIRE Senior Fellow Jacob Mchangama, and Washington and Lee University professor Lucas Morel join the show this week to explore how free speech and the free press became the essential tools in the abolitionists' campaign for freedom.

More in the news

2022-2023 SCOTUS term: Free expression and related cases

Cases decided 

  • 303 Creative LLC v. Elenis (6-3 per Gorsuch for the majority and Sotomayor for the dissent: The First Amendment prohibits Colorado from forcing a website designer to create expressive designs speaking messages with which the designer disagrees.)
  • Counterman v. Colorado (Held: First Amendment violated — 4 votes per Kagan with Sotomayor concurring in part joined by Gorsuch in part. Thomas filed a dissent and Barrett also filed a dissent, in which Thomas joined.) (“In this context, a recklessness standard — i.e., a showing that a person ‘consciously disregard[ed] a substantial [and unjustifiable] risk that [his] conduct will cause harm to another’ . . . — is the appropriate mens rea. Requiring purpose or knowledge would make it harder for States to counter true threats — with diminished returns for protected expression. The State prosecuted Counterman in accordance with an objective standard and did not have to show any awareness on Counterman’s part of his statements’ threatening character. That is a violation of the First Amendment.”) 
  • Jack Daniel’s Properties, Inc. v. VIP Products LLC (9-0: held — When a defendant in a trademark suit uses the mark as a designation of source for its own goods or services — i.e., as a trademark — the threshold Rogers test for trademark infringement claims challenging so-called expressive works, see Rogers v. Grimaldi, does not apply, and the Lanham Act’s exclusion from liability for “[a]ny non-commercial use of a mark” does not shield parody, criticism, or commentary from a claim of trademark dilution.”  This from footnote 1 of the majority opinion: “To be clear, when we refer to ‘the Rogers threshold test,’ we mean any threshold First Amendment filter.” Justice Kagan wrote the majority. Justice Sotomayor filed a concurring opinion, in which Justice Alito joined. Justice Gorsuch filed a concurring opinion, in which Justices Thomas and Barrett joined.)
  • United States v. Hansen (7-2: Title 8 U.S.C. § 1324(a)(1)(A)(iv) — which criminalizes “encouraging or inducing” illegal immigration — forbids only the purposeful solicitation and facilitation of specific acts known to violate federal law and is not unconstitutionally overbroad.)

Review granted

Cert granted and case remanded 

  • U.S. v. Hernandez-Calvillo (cert. granted, judgment vacated, and case remanded to the U.S. Court of Appeals for the 10th Circuit for further consideration in light of United States v. Hansen
  • Klein v. Oregon Bureau of Labor and Industries (cert. granted, judgment vacated, and case remanded to the Court of Appeals of Oregon for further consideration in light of 303 Creative LLC v. Elenis).

Pending petitions

State action

Qualified immunity

Immunity under Foreign Sovereign Immunities Act 

Liability Anti-Terrorism Act

  • Twitter v. Taamneh (held, 9-0 per Thomas, J.: SCOTUSblog: “Plaintiffs’ allegations that the social-media-company defendants aided and abetted ISIS in its terrorist attack on a nightclub in Istanbul, Turkey fail to state a claim under 18 U.S.C. § 2333(d)(2).”)

Section 230 immunity

  • Gonzalez v. Google (held, 9-0, per curiam, SCOTUSblog: “The 9th Circuit’s judgment — which held that plaintiffs’ complaint was barred by Section 230 of the Communications Decency Act — is vacated, and the case is remanded for reconsideration in light of the court’s decision in Twitter, Inc. v. Taamneh.”)

Review denied

Previous FAN

FAN 385.1: “Stephen Rohde, Devil's Advocate: Why is a prominent ethics professor defending John Eastman on First Amendment grounds?

This article is part of First Amendment News, an editorially independent publication edited by Ronald K. L. Collins and hosted by FIRE as part of our mission to educate the public about First Amendment issues. The opinions expressed are those of the article’s author(s) and may not reflect the opinions of FIRE or of Mr. Collins.

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