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David Cole: 'I drafted our case selection guidelines precisely to reaffirm [the ACLU's] commitment to free speech, not to abandon it' — FAN 342
David Cole is a familiar name to those in the First Amendment community. He has litigated several First Amendment cases in the Supreme Court, including Texas v. Johnson (1989); United States v. Eichman (1990); National Endowment for the Arts v. Finley (1997); Holder v. Humanitarian Law Project (2010); Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018); and Mahanoy Area School District v. B.L. (2021). Now he has returned, yet again, to defend the ACLU and its position on First Amendment questions in an article for The Nation titled "The ACLU Never Stopped Defending Free Speech."
Here are a few excerpts:
Earlier this month the ACLU argued before the US Court of Appeals for the 10th Circuit in defense of a high school student expelled for temporarily posting to Snapchat a picture of his friends dressed in World War II–era clothes at a thrift store with the caption: “Me and the boys bout to exterminate the Jews.” He took it down shortly thereafter—and apologized for what was a stupid and deeply offensive joke—but the school expelled him nonetheless. We argued that while the anti-Semitic message was deeply offensive, it was also protected by the First Amendment when uttered outside of the school, and could not be the basis for punishment. In doing so, we were only doing what we have always done—defending speech rights for all, even those with whom we disagree.
The ACLU has long been criticized for taking such stands. Think Skokie, where we defended the right of neo-Nazis to march though a largely Jewish suburb of Chicago. But these days, the criticism has changed, as commentators in The New York Times, The Wall Street Journal, The Atlantic, and The Hill, have charged that we have abandoned such work, and no longer defend those with whom we disagree. Even Bill Maher has jumped on the bandwagon. If the charges were true, that would be deeply concerning, given the ACLU’s historic role in the development and enforcement of First Amendment rights. But they aren’t true. Despite the many articles repeating this accusation, no one has yet identified a single client or cause we turned away because they were too controversial.
We continue to believe that the First Amendment is the foundation of our democracy, and we defend it for precisely that reason. It remains the best protection for those who lack power, and for those pressing for equal treatment. It protects our ability to speak out, to organize, to associate with like-minded others, to march in the streets, and to demand change from our government. It’s the lifeblood of Black Lives Matter, #MeToo, and the LGBTQ movement—and of anti-abortion activists, gun rights advocates, and libertarians. Yes, it extends to the powerful and hateful as well as the marginalized. That’s the thing about rights. They apply universally. But if you are in the minority, whatever side you are on, there is no more important safeguard. None.
[ . . . ]
[A]ctions speak louder than words. Since Charlottesville and the guidelines, we have defended the First Amendment rights of countless individuals and groups whose views we do not share. They include: Trump lawyer Michael Cohen, the NRA, anti-Semitic protesters outside a synagogue, racist and homophobic college students, and the Koch-funded Americans for Prosperity. Most recently, we called on Georgetown Law not to fire conservative scholar Ilya Shapiro for his “lesser Black woman” tweet about Biden’s promise to name a Black woman to the Supreme Court; criticized the FBI’s tactics in investigating the conservative group Project Veritas; and hailed Elon Musk’s decision to re-platform Donald Trump. We didn’t agree with the speech of any of these individuals or groups—but that didn’t stop us from defending their First Amendment rights.
→ “The ACLU & the First Amendment” with David Cole interviewed by Jess Bravin, First Amendment Salon (Dec. 8, 2016)
→ "Georgetown professor David Cole named first recipient of ACLU's Dorsen Presidential Prize," ACLU Blog (May 31, 2013)
Samplings: David Cole on free speech
- "The University and Freedom of Expression," New York Review of Books (see here also) (Feb. 15, 2022)
- "Free Speech For All Is Still Our Mission," The Atlantic (May 23, 2022)
- "Defending Speech We Hate," ACLU Blog (Feb. 2, 2022)
- "Liberals, Don’t Lose Faith in the First Amendment," The New York Times (2018)
- "The ACLU’s Longstanding Commitment to Defending Speech We Hate," ACLU Blog (2018)
- "Why We Must Still Defend Free Speech," New York Review of Books (2017)
- "The First Amendment's Borders: The Place of Holder v. Humanitarian Law Project in First Amendment Doctrine," Harvard Law & Policy Review (2012)
- "From Hand-Holding to Sodomy: First Amendment Protection of Homosexual (Expressive) Conduct," Harvard Civil Rights-Civil Liberties Review (1994) (with William Eskridge)
- "First Amendment Antitrust: The End of Laissez-Faire in Campaign Finance," Yale Law & Policy Review (1991)
- "Agon at Agora: Creative Misreadings in the First Amendment Tradition," Yale Law Journal (1985)
- "Ira Glasser returns once more: Unexpected good news from two ‘liberal law professors’?" FAN 338.3 (May 9, 2022)
- "The ACLU free speech controversy flares up yet again," FAN 310 (June 16, 2021)
- "David Cole weighs in on Fulton v. City of Philadelphia and the future of First Amendment jurisprudence," FAN 280 (Dec. 9, 2020)
- Ronald Collins, “The ACLU free speech controversy – a history,” The Free Speech Center (July 5, 2018)
- Eugene Volokh, “Prof. Ron Collins on the freedom of speech and ACLU fundraising,” The Washington Post (Feb. 10, 2016)
High Court temporarily halts Texas law regulating social media platforms
The case is Netchoice v. Paxton (May 31). The unsigned opinion for the Court was brief:
The application to vacate stay presented to JUSTICE ALITO and by him referred to the Court is granted. The May 11, 2022 order of the United States Court of Appeals for the Fifth Circuit staying the district court’s preliminary injunction is vacated.
The procedural posture of the case according to Eugene Volokh over at The Volokh Conspiracy:
[T]his isn't a decision on the merits, but only a decision on whether the Texas social media viewpoint neutrality law should be stayed pending appeal. The district court, which said the law was likely unconstitutional, had said stay; the Fifth Circuit, which hasn't yet announced a decision on the merits, had said no stay; the Supreme Court, again without a decision on the merits, says stay (again, pending appeal).
Justice Kagan's dissent was quite brief: She "would deny the application to vacate stay." Ian Millhiser reports for Vox that:
Though Kagan did not explain why she dissented, she is an outspoken critic of the Court’s increasingly frequent practice of deciding major cases on its “shadow docket,” an expedited process where cases are decided without full briefing and oral argument. Netchoice arose on the Court’s shadow docket, so it is possible that Kagan dissented in order to remain consistent with her previous criticism of that docket.
Justice Alito's dissent was joined by Justices Thomas and Gorsuch. Excerpts below (footnotes omitted):
This application concerns issues of great importance that will plainly merit this Court’s review. Social media platforms have transformed the way people communicate with each other and obtain news. At issue is a ground-breaking Texas law that addresses the power of dominant social media corporations to shape public discussion of the important issues of the day.
[ . . . ]
I cannot agree with the Court’s disposition. To be entitled to vacatur of the stay, applicants must show, among other things, a “substantial likelihood of success on the merits.” Alabama Assn. of Realtors v. Department of Health and Human Servs., 594 U. S. ___, ___ (2021) (per curiam) (slip op., at 5). Members of this Court have argued that a determi- nation regarding an applicant’s likelihood of success must be made under “existing law,” Merrill v. Milligan, 595 U. S. ___, ___ (2022) (ROBERTS, C. J., dissenting) (slip op., at 1); Wisconsin Legislature v. Wisconsin Elections Commission, 595 U. S. ___, ___ (2022) (SOTOMAYOR, J., dissenting) (slip op., at 1) (“existing precedent”). And whether applicants are likely to succeed under existing law is quite unclear.
The law before us is novel, as are applicants’ business models. Applicants claim that §7 of HB20 interferes with their exercise of “editorial discretion,” and they maintain that this interference violates their right “not to disseminate speech generated by others.” Application 19. Under some circumstances, we have recognized the right of organizations to refuse to host the speech of others. See Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557 (1995) (parade organizer); Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241 (1974) (newspaper). But we have rejected such claims in other circumstances. For example, in PruneYard Shopping Center v. Robins, 447 U. S. 74 (1980), we rejected the argument that the owner of a shopping mall had “a First Amendment right not to be forced by the State to use his property as a forum for the speech of others.” Id., at 85. And in Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622 (1994), we declined to apply strict scrutiny to rules that “interfere[d] with cable operators’ editorial discretion by compelling them to offer carriage to a certain minimum number of broadcast stations.” Id., at 643–644; see generally E. Volokh, Treating Social Media Platforms Like Common Carriers? 1 J. Free Speech Law 377 (2021).
It is not at all obvious how our existing precedents, which predate the age of the internet, should apply to large social media companies, but Texas argues that its law is permissible under our case law. First, Texas contends that §7 does not require social media platforms to host any particular message but only to refrain from discrimination against a user’s speech on the basis of “viewpoint,” App. 49a, and in this respect the statute may be a permissible attempt to prevent “repression of [the freedom of speech] by private interests,” Associated Press v. United States, 326 U. S. 1, 20 (1945). Second, Texas argues that HB20 applies only to platforms that hold themselves out as “open to the public,”
App. 40a, and as neutral forums for the speech of others. These representations suggest that the covered social media platforms—like the cable operators in Turner—do not generally “‘convey ideas or messages [that they have] endorsed.’ ” Hurley, 515 U. S., at 576. Third, since HB20 is limited to companies with “50 million active users in the United States,” App. 41a, Texas argues that the law applies to only those entities that possess some measure of common carrier-like market power and that this power gives them an “opportunity to shut out [disfavored] speakers.” 515 U. S., at 577; see also Biden v. Knight First Amendment Institute at Columbia Univ., 593 U. S. ___, ___–___ (2021) (THOMAS, J., concurring) (slip op., at 6–7).
If anything, Texas submits, its arguments regarding the constitutionality of §2’s disclosure requirements are even stronger. The State notes that we have upheld laws requiring that businesses disclose “purely factual and uncontroversial information about the terms under which [their] services will be available,” so long as those requirements are not “unjustified or unduly burdensome.”
[ . . . ]
I reiterate that I have not formed a definitive view on the novel legal questions that arise from Texas’s decision to address the “changing social and economic” conditions it perceives. New State Ice Co. v. Liebmann, 285 U. S. 262, 311 (1932) (Brandeis, J., dissenting). But precisely because of that, I am not comfortable intervening at this point in the proceedings. While I can understand the Court’s apparent desire to delay enforcement of HB20 while the appeal is pending, the preliminary injunction entered by the District Court was itself a significant intrusion on state sovereignty, and Texas should not be required to seek preclearance from the federal courts before its laws go into effect.
Lawyers for petitioners
- Scott A. Keller (former Texas Solicitor General)
- Paul Clement (former U.S. Solicitor General)
→ Petitioners' Application for Emergency Stay
- Netchoice v. Attorney General of Florida (11th Cir., May 23, 2022)
- Josh Blackman, "OK, Justice Barrett, I 'read the opinion' in Netchoice LLC v. Paxton," The Volokh Conspiracy (June 1)
- Ilya Somin, "Thoughts on the Supreme Court's Reinstatement of the Preliminary Injunction Against the Texas Social Media Law," The Volokh Conspiracy (May 31)
I have previously argued that the Texas law and others like it do indeed violate the First Amendment, and would pose a grave threat to freedom of speech if upheld.
- Eugene Volokh, "Supreme Court Reinstates Stay of Texas Social Media Law (Pending Appeal); Justices Alito Dissents," The Volokh Conspiracy (May 31)
- Will Oremus, "Want to regulate social media? The First Amendment may stand in the way." The Washington Post (May 30)
“The First Amendment is to some degree up for grabs,” says Genevieve Lakier, a University of Chicago law professor and senior visiting research scholar at the Knight First Amendment Institute. “These old principles are being pushed and pulled and reimagined in light of changing technological conditions and changing political alignments. [...] It’s a live question.” While she believes the Texas and Florida laws go too far in restricting platforms, she added, “I will say as a progressive, I’m quite sympathetic to this turn to users’ speech rights. I think we should be thinking about that a lot more than we have in the past."
Second Circuit: Municipalities are free to decide what is painted on city streets
The case is Women for America First v. Adams (2nd Cir., May 27).
In July 2020, New York City employees and private citizens began painting “Black Lives Matter” in large, bright-yellow letters on Fifth Avenue in Manhattan, directly in front of Trump Tower. The mural was allegedly undertaken by the New York City Department of Transportation (“DOT”) at an initial cost of approximately $6,000. Moreover, the mural was part of former New York City Mayor Bill de Blasio’s commitment to the “Black Lives Matter” movement, which included an announcement by Mayor de Blasio that each borough in New York City (the “City”) would get its own “Black Lives Matter” mural. Thus, according to the amended complaint, the mural on Fifth Avenue was one of seven similar murals painted on streets throughout the City at Mayor de Blasio’s direction.
Also in July 2020, [Women for America First (“WFAF”)] submitted a request to Mayor de Blasio to paint its own mural on a City street.3 After receiving no response, WFAF sent a second request that was later denied by the DOT because “the NYC DOT does not permit installations on City roadways that are open to traffic.” App’x at 33. On July 28, 2020, WFAF brought suit against defendants-appellees— former Mayor Bill de Blasio and former New York City Transportation Commissioner Polly Trottenberg, in their official capacities (collectively, “the City Defendants”)—alleging that their denial of WFAF’s request to paint a mural similar to the City’s seven “Black Lives Matter” murals (together, the “Murals”) deprived WFAF of its First Amendment rights in violation of 42 U.S.C. § 1983.
The district court granted the City Defendants’ motion to dismiss, concluding that the Murals constituted government—rather than private—speech and, thus, that WFAF’s First Amendment claim that it was entitled to paint its own mural on the street failed as a matter of law. On appeal, WFAF challenges the dismissal of the amended complaint, arguing that the district court incorrectly concluded that (1) the Murals were government speech not subject to First Amendment regulation, and (2) WFAF had accordingly not alleged a prima facie case of viewpoint discrimination.
[ . . . ]
WFAF [argues that: (1) because one mural (the Fulton Street Mural) “was painted without [City Defendants'] knowledge, consent, approval, or participation,” it “could not have been the government's own speech”; and (2) “even if the Black Lives Matter murals were found to constitute government speech, the defendants' imposition of [content-based] restrictions on the painting of such murals fails strict scrutiny.”
As to WFAF’s contention regarding the Fulton Street Mural, we first note that there is no allegation in the amended complaint that any of the Murals were painted without the advance knowledge and approval of the City Defendants. To the contrary, the amended complaint cites a report stating that all of the Murals were “painted on sites throughout the city at the behest of Mayor Bill de Blasio.” App’x at 15 (emphasis added). In any event, even assuming, arguendo, that a single mural was created entirely by private individuals, that does not, by itself, render it private speech. We recognize that “[i]f private speech could be passed off as government speech by simply affixing a government seal of approval, government could silence or muffle the expression of disfavored viewpoints.” Matal v. Tam, 137 S. Ct. 1744, 1758 (2017). However, it is also well established that, if the other factors as outlined above are satisfied, speech may be properly attributed to the government, even when private individuals were involved in its creation. Summum, 555 U.S. at 471–72; Walker, 576 U.S. at 210–13.
[ . . . ]
As to WFAF’s second contention, that we should examine the Murals and the City Defendants’ denial of WFAF’s request as restrictions on speech in a traditional or designated public forum, such an examination would be inapposite. When the government is speaking for itself, the forum analysis simply does not apply.
[ . . . ]
In sum, even accepting the allegations of the amended complaint as true and drawing all reasonable inferences in WFAF’s favor, we conclude that the Murals were “meant to convey and have the effect of conveying a government message” and thus, the Murals are government, not private, speech. Summum, 555 U.S. at 472. Accordingly, the district court correctly held that WFAF’s amended complaint failed to plausibly allege a First Amendment claim.
Dale Carpenter, Eugene Volokh, & Ilya Shapiro file amicus brief in website design case
Their amicus brief in 303 Creative LLC v. Elenis can be found here.
Corn-Revere on First Amendment cultural rebels & commercial speech
- Robert Corn-Revere, "First Amendment Rebels & the World of Advertising," The Sling (May 31)
The world of commerce and the commercial speech that fuels it is now a freer place because of the First Amendment protections that were fashioned in cases brought by previous generations of free speech rebels. In October 2021, Flying Dog Brewery paid tribute to this legacy by issuing the first in a series of tribute beers – the first one called “Obscenity” and dedicated to Lenny Bruce. It is only fitting. The First Amendment struggles of Lenny, Hef, and others are the reason a business like Flying Dog can call itself a “First Amendment brewery.”
First Amendment Salon: Combatting disinformation & embracing free speech
- “Combatting Disinformation & Embracing Free Speech: A Delicate Balance” with Richard Hasen, Laura Edelson, Alex Abdo, First Amendment Salon (May 17)
Book review of Mchangama's 'Free Speech: A History from Socrates to Social Media'
- Mark Movsesian, "Free Speech in a Divided Society," Law and Liberty (May 30)
To write a comprehensive history like this one is an ambitious undertaking, and Free Speech is a mixed success. Mchangama writes engagingly and has done his research. The chapters on the Internet and social media are especially good. But even at 500 pages, a history that spans thousands of years and many civilizations is bound to be a bit superficial at times. Moreover, as he himself recognizes, tolerance for others’ speech depends as much on culture as it does on law—and in today’s polarized, distrustful America, we are less and less likely to give our opponents the benefit of the doubt and let them have their say even if the law permits it.
[ . . . ]
Mchangama’s discussion of the first recorded claim of academic freedom, concerning the teaching of Aristotle at the University of Paris in 1206, is fascinating, as is his discussion of a similar controversy at Columbia University seven hundred years later, when two professors lost their jobs for opposing World War I. [. . . .]
Mchangama’s description of what he calls “the Weimar fallacy,” a phrase he borrows from legal philosopher Eric Heinze, is thought-provoking. Advocates of limiting hate speech sometimes maintain that the Weimar Republic could have stopped the rise of Nazism by silencing Adolph Hitler in the 1920s, thereby avoiding the Holocaust. In response, Mchangama points out that the Weimar Republic did attempt to restrict Nazi speech, but that its efforts backfired, increasing sympathy for Hitler and his crew and “turning monsters into martyrs.”
[ . . . ]
In other words, the reason why negotiating conflicts over free speech is so difficult is that Americans increasingly do not see ourselves as part of a common project and do not trust one another. In this polarized climate, disagreement comes across as threat and insult, and allowing our opponents to have their say seems less and less appealing.
More in the news
- Eugene Volokh, “Judge Rakoff Declines to Reconsider Judgment Against Sarah Palin in Her Suit Against N.Y. Times,” The Volokh Conspiracy (May 31)
- Eugene Volokh, “Illinois Appellate Court Strikes Down Anti-Disparagement Injunction,” The Volokh Conspiracy (May 31)
- Eugene Volokh, “Does Pulling Funding from CUNY Law School Because of School's Anti-Israel Resolution Violate First Amendment?,” The Volokh Conspiracy (May 30)
- Kevin Mooney, “Pennsylvania Teachers’ Unions Get Schooled in the First Amendment,” National Review (May 29)
- Mark Movsesian, “The Myth of the Value-Neutral Market,” First Things (May 25)
2021-2022 SCOTUS term: Free expression & related cases
- Federal Election Commission v. Ted Cruz for Senate (First Amendment claim affirmed)
- 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 (Distributed for conference of June 16, 2022)
- Marshall v. Supreme Court of the State of New Mexico
- Smith v. United States
- American Society of Journalists v. Bonta
First Amendment related petitions
- Arlene’s Flowers Inc. v. Washington (petition for rehearing)
Applications for stay orders
- Netchoice v. Paxton (application denied)
- 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.
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