When it comes to talk about free speech, perhaps no one was as perceptive and honest as Justice Oliver Wendell Holmes, the old and battle-torn Civil War veteran who, after that conflict, never believed in anything save the principle of the survival of the fittest. His dystopian candor lent a certain realism to the First Amendment doctrines he fashioned.
Unlike so many of today’s pompous defenders of free speech who champion the First Amendment whenever it privileges their ideological team, Holmes pushed real risk to the borders of near destruction. He was obsessed with conflict! As he put it in an 1895 Memorial Day address titled, “The Soldier’s Faith”:
Now, at least, and perhaps as long as man dwells upon the globe, his destiny is battle, and he has to take the chances of war. . . Sooner or later we shall fall; but meantime it is for us to fix our eyes upon the point to be stormed, and to get there if we can.
Torn as he was by the Civil War, Holmes emerged damaged but determined to revere the lives of those dedicated to duty. In poetic eulogies, Memorial Day tributes, and in his judicial opinions, Holmes brought his war memories back to life and transformed them into a Darwinian-like jurisprudence of free speech — the fight in the marketplace of ideas.
Holmes’ earthly fight ended when the old soldier was laid to rest at Arlington National Cemetery, as infantrymen raised their rifles and fired a three-volley salute and his casket was lowered into the ground.
In a world bloated with comfort but bereft of certainty, Holmes hoped to revive the great Phoenix of a soldier’s faith — a faith tied to duty and to the value of struggle as a core principle of life. In that Holmesian contest, there are no transcendent truths, no supreme absolutes, no celestial rescues — only transient victors in the battles of ideas. Simply consider what he said in his 1925 dissent in Gitlow v. New York:
If, in the long run, the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.
Here is how he spoke of that much-heralded dissent in a June 18, 1925, letter to Frederick Pollock:
My last performance during the term, on the last day, was a dissent (in which Brandeis joined) in favor of the rights of an anarchist (so-called) to talk drool in favor of the proletarian dictatorship.
Or as he put it in a July 11, 1925, letter to Lewis Einstein, “I regarded my view as simply upholding the right of a donkey to drool.”
Oh, his fascination with donkey drool — A.K.A., “ideas” — and the First Amendment! No highfalutin Enlightenment principles at play here. Just the wild tumble of dice.
“All life is an experiment” is how Holmes cast it in his dissent in 1919 in Abrams v. United States. “Every year if not every day,” he added, “we wager our salvation upon some prophecy based upon imperfect knowledge.”
Holmes’s jurisprudence captured American law in utopian and dystopian ways. On the one hand, it offered the hope of societal toleration and openness, enabling pragmatic survival and the possibility of a more muscular measure of truth. On the other hand, that same jurisprudence in time would pave a path to today’s polarized polity, where truth collapses into opinion and facts fade into “fake news.” Today, the reality of any lasting truths seems more fanciful than possible. In effect, the same marketplace of ideas that might save the country is also the one that could portend its downfall. The Holmesian touchstone, after all, was less the enlightenment of humankind than the survival of any opinion vetted only by conflict in the marketplace. In that arena, truth might sometimes triumph, but at other times it might easily surrender to falsehood. Holmes, the soldier turned jurist, was fine with the gamble — such was the lesson he learned from the fields of battle where causes were won and lost.
Holmes went to war in the service of high principles but left believing in no principles at all, other than the risks that come with a soldier’s duty. As he put it in his 1895 Memorial Day Address:
In the midst of doubt, in the collapse of creed, there is one thing I do not doubt and that is that the faith is true and adorable which leads a soldier to throw away his life in obedience to a blindly accepted duty, in a cause which he little understands, in a plan or campaign of which he has no notion, under tactics of which he does not see the use, and he has to take the chances of war.
Maybe in the end, when all the pomp and hypocrisy are set aside, it just all comes down to defending the right of jackasses to drool. Now there is a Holmesian lesson for law students to ponder.
- Ronald Collins, ed., “The Fundamental Holmes: A Free Speech Chronicle and Reader,” (Cambridge University Press, 2010)
Administration asks SCOTUS to block limits on collaboration with social media companies
- Amy Howe, “Biden asks justices to block limits on collaboration with social media companies,” SCOTUSblog (Sept. 14)
The Biden administration on Thursday afternoon asked the Supreme Court to temporarily block a lower court’s order that would limit its ability to communicate with social media companies over content moderation policies. U.S. Solicitor General Elizabeth Prelogar told the justices that if the “unprecedented” order is allowed to stand, it would put a Louisiana district judge in charge of overseeing the executive branch’s communications with social media companies.
Shortly after receiving the government’s request, Justice Samuel Alito — who handles emergency requests from the U.S. Court of Appeals for the 5th Circuit — put the lower court’s order on hold until the end of the day on Friday, Sept. 22, to give the justices time to rule on the request. Alito also directed the plaintiffs to file a response to the government’s application by 4 p.m. on Wednesday, Sept. 20.
The dispute arises from the federal government’s efforts to combat the spread of misinformation on social media by flagging content for social media platforms and urging them to remove that content. The lawsuit was filed by Republican attorneys general in Missouri and Louisiana, as well as four individual plaintiffs whose social media posts on controversial topics such as the COVID-19 lab-leak theory and vaccine side effects were removed or downgraded. They argued that the government “coerced, threatened, and pressured social-media platforms to censor” them, which violated the First Amendment.
ACLU urges SCOTUS to affirm right to observe police during protests
The American Civil Liberties Union and the American Civil Liberties Union of Missouri filed a petition in the U.S. Supreme Court urging it to reverse a decision dismissing a case against police for tear gassing legal observers after they departed a protest sparked by a fatal police shooting. The case, Molina v. Book, asks the court to resolve a split among the federal appellate courts concerning when words printed on clothing are protected by the First Amendment. The petition also asks the court to reconsider the doctrine of “qualified immunity,” which shields government officials from accountability for violating the Constitution.
“Our clients were tear-gassed for being legal observers at a protest. The Eighth Circuit court’s ruling that such misconduct does not violate clearly established First Amendment rights is egregiously wrong,” said Anthony Rothert, Director of Integrated Advocacy at the ACLU of Missouri [and counsel of record]: “The idea that words written on clothing aren’t protected by the First Amendment unless everyone would understand their message denies constitutional protection to one of the most common forms of public expression.”
The plaintiffs in the case, Sarah Molina and Christina Vogel, were legal observers at a protest and wore bright green hats stating ‘National Lawyers Guild Legal Observer.’ When police ordered the protesters to disperse, Molina and Vogel left, and returned to Molina’s house, several blocks away, where they stood on the sidewalk. Police in an armored vehicle later drove by Molina’s house and officers threw multiple tear gas canisters at Molina and Vogel. Molina and Vogel sued, arguing that the police had retaliated against them for participating as legal observers in the protest. They argued that the police tear-gassed them because they wore hats proclaiming that they were legal observers, and because they observed the police, both First Amendment protected activities.
A divided panel of the U.S. Court of Appeals for the Eighth Circuit dismissed the case. It ruled that words printed on clothing do not warrant First Amendment protection unless they express a “particularized message,” and that the words “National Lawyers Guild Legal Observer” on the plaintiffs’ hats were not protected because “not everyone” would understand the hats to express a “pro-protest” message. Plaintiffs argue that words, no matter where they appear, are “pure speech” protected by the First Amendment without regard to whether they express a “particularized message.” The Fourth, Fifth, and Ninth Circuit have adopted the plaintiffs’ view, while the Sixth, Seventh, and Eighth Circuit have ruled that words on clothing are protected only if they express a particular viewpoint.
The ACLU’s petition asks the court to resolve this disagreement by applying the First Amendment to words printed on clothing whether or not it expresses a “particularized message,” and to reverse the Eighth Circuit’s ruling that it was not “clearly established” that citizens have a right to observe the police unobtrusively in public. The ACLU also asked the court to reconsider the doctrine of qualified immunity, a judicially created rule that shields government officials of liability for violating the constitution unless they violate ‘clearly established’ rights.
“This case illustrates just how wrong the doctrine of qualified immunity in its current form is. It should be obvious that police cannot tear gas someone for being a legal observer at a protest, yet the Eighth Circuit managed to dismiss a case alleging fundamental First Amendment violations,” said David D. Cole, ACLU’s national legal director. ”We’re asking the court to reconsider that doctrine’s very foundations, as well as to make clear that the First Amendment protects all written words, without some assessment of whether they express a sufficiently particular view.”
The petition can be found online here.
Related: Political statement . . . or just a T-shirt and a cap?
Rushdie delivers keynote at National First Amendment Summit
This from First Amendment Watch:
Celebrated author and free speech advocate Salman Rushdie warned of the rise of global authoritarianism in a virtual keynote address at the inaugural National First Amendment Summit in Philadelphia on Wednesday.
The event, hosted by the National Constitution Center in partnership with a coalition of leading free speech organizations, including First Amendment Watch, addressed the increasing threats to freedom of expression and the looming challenges posed by new technologies.
The event also featured three expert panels, in which leading free speech scholars tackled major issues and controversies. You can watch those discussions by following the links below.
- The Origins of the First Amendment
- Technology’s Impact on the First Amendment
- Campus Speech Controversies
The Princeton book controversy
- Keith Whittington, “More on Controversial Books at Princeton,” The Volokh Conspiracy (Sept. 15)
Before the start of the Fall semester, I noted that an assistant professor in the Department of Near Eastern Studies at Princeton University was mired in a controversy over a book that she had assigned for an upcoming class. The university was receiving demands that the book be banned from the class, and in some cases that the professor be fired for good measure.
The semester has now begun, and to my knowledge the class is being taught with The Right to Maim still on the syllabus. The university administration had refrained from issuing a public statement on the controversy, until now.
President Chris Eisgruber included a brief reaffirmation of the importance of academic freedom in his address to the faculty at the start of the new academic year. That statement was cast in general terms, and it can be found here.
- Princeton President Chris Eisgruber, “Response to Rep. Gottheimer about Academic Freedom and Course Materials,” The Volokh Conspiracy (Sept. 15)
Anti-SLAPP legislation comes to New Jersey
- Greg Gonzalez, “New Jersey slaps down censorship with anti-SLAPP legislation,” FIRE (Sept. 11)
[Recently], New Jersey took an important step in protecting free expression on public issues when Gov. Phil Murphy signed Senate Bill S.2802, the Uniform Public Expression Protection Act. The bill, which protects against frivolous litigation, passed unanimously in both houses of the New Jersey Legislature.
Plaintiffs typically file strategic lawsuits against public participation, or “SLAPPs,” against critics with the intent to burden or intimidate them into silence. Deep-pocketed parties will simply haul their outspoken opponents into court with claims that are costly and/or time-consuming to fight, hoping to intimidate the defendant(s) into self-censorship. Individuals speaking out or reporting on important local issues are frequent targets of SLAPPs.
Citizens exercising their free speech rights should not have to endure the toll of litigation and risk their life savings defending themselves against meritless claims. With that in mind, FIRE has written about the importance of legislation aimed at combating SLAPPs, and we even intervened last month after a Maine hospital threatened a SLAPP suit in retaliation against a 15-year-old teenager who criticized the hospital system’s safety standards.
New Jersey joins more than 30 other states that have enacted anti-SLAPP statutes. The New Jersey bill applies to lawsuits where the cause of action against a person is based on:
- Communication in a legislative, executive, judicial, administrative, or other governmental proceeding;
- Communication on an issue under consideration or review in a legislative, executive, judicial, administrative, or other governmental proceeding; or
- Exercise of the right of freedom of speech or of the press, the right to assembly or petition, or the right of association, guaranteed by the United State Constitution or the New Jersey Constitution, on a matter of public concern.
The legislation allows New Jersey courts to pause and then dismiss frivolous lawsuits early in the litigation process and to award the victims of these frivolous lawsuits attorney’s fees and court costs related to defending their free expression.
- “Institute for Free Speech Hails New Jersey Becoming 33rd State with an Anti-SLAPP Law,” Institute for Free Speech (Sept. 8) (see also the Institute’s 50-state Anti-SLAPP Report Card)
The whole truth about food and diet?
- Anahad O’Connor, Caitlin Gilbert, and Sasha Chavkin, “Dietitians to shape your eating habits,” The Washington Post (Sept. 17)
Registered dietitians are being paid to post videos that promote diet soda, sugar and supplements on Instagram and TikTok
Steph Grasso, a registered dietitian from Oakton, Va., used the hashtag and told her 2.2 million followers on TikTok that the warnings about artificial sweeteners were “clickbait” based on “low-quality science.”
Another dietitian, Cara Harbstreet of Kansas City, reassured her Instagram followers not to worry about “fear-mongering” about aspartame because “the evidence doesn’t suggest there’s a reason for concern.”
In a third video, Mary Ellen Phipps, a Houston-area dietitian who specializes in diabetes care, sipped from a glass of soda and told her Instagram viewers that artificial sweeteners “satisfy the desire for sweetness” without affecting blood sugar or insulin levels. What these dietitians didn’t make clear was that they were paid to post the videos by American Beverage, a trade and lobbying group representing Coca-Cola, PepsiCo and other companies.
‘So to Speak’ podcast: Ronnie London and Greg Lukianoff
- “‘Don't Tread on Me,’ misgendering, cancel culture, and three strikes for Texas,” FIRE (Sept. 6)
FIRE President and CEO Greg Lukianoff and FIRE General Counsel Ronnie London join the show to preview Greg's new co-authored book on cancel culture and to discuss recent free speech cases and headlines.
FIRE’s latest college free speech rankings
- “2024 College Free Speech Rankings show alarming 81% success rate of deplatforming attempts at nation’s most censorial schools,” FIRE (Sept. 6)
- The largest survey ever conducted of campus free speech ranks 248 colleges.
- Michigan Tech comes in first and the University of Virginia makes the top 10 while Harvard ranks dead last with the lowest score ever.
- At Oberlin College, only a little more than half of students think it is never acceptable to use violence to silence a campus speaker.
- Deplatforming attempts at the five lowest ranked colleges have an alarming 81% success rate.
Students entering college this fall can expect new friendships, all-night study sessions, dining hall food — and a culture of conformity and censorship. A new survey of more than 55,000 students across the country shows that most attend colleges that don’t value free expression.
[Recently], the Foundation for Individual Rights and Expression and College Pulse released the fourth annual College Free Speech Rankings, ranking the free speech cultures of 248 of America’s largest and most prestigious campuses in order from best (Michigan Technological University) to worst (Harvard University).
“Each year, the climate on college campuses grows more inhospitable to free speech,” said FIRE Director of Polling and Analytics Sean Stevens. “Some of the most prestigious universities in our country have the most repressive administrations. Students should know that a college degree at certain schools may come at the expense of their free speech rights.”
Upcoming event at Antonin Scalia Law School — this Friday, live and online
Does free expression help or harm the cause of social progress?
Join senior scholars and exciting new voices presenting cutting-edge research on the role freedom of speech plays in advancing civil rights movements (past, present and future). Academic research into this important topic has been surprisingly limited. Scholars will present new papers exploring whether free expression entrenches an unjust status quo or provides critical support for groups wishing to challenge it.
Keynote and plenary speakers:
Keynote: Jonathan Rauch, Senior Fellow - Governance Studies, Brookings Institute
Plenary: Nadine Strossen, John Marshall Harlan II Professor of Law, Emerita, NYLS
Friday, September 22 · 9 a.m. - 6 p.m. ET
Forthcoming book on fear and the First Amendment
- Kevin A. Johnson and Craig R. Smith, “Fear and the First Amendment: Controversial Cases of the Roberts Court,” University of Alabama Press (Forthcoming, June 4, 2024)
A whole host of fears may motivate calls to restrict First Amendment rights, prioritizing one fear over another. Fear and the First Amendment unveils these negotiations of various fears and related protections as they appear in the contemporary Supreme Court, showing that fear is significant and rhetorical in First Amendment conflicts.
“The authors provide clear explanations of complicated cases, they do a fantastic job walking the reader through legal precedent, and they provide a rich historical context for each case that productively brings the fears that animate each case to life for the reader.”
—Katie Gibson, Professor of Communication Studies at Colorado State University.
“Johnson and Smith deliver on their promise to interrogate the connection between fear and the First Amendment. This book is told in an accessible, narrative manner that keeps readers engaged throughout, while remaining rigorous and thorough. The cases they highlight are not just pertinent but turning points in 1A jurisprudence and necessary for any student or scholar of the First Amendment to grapple with, making this book an indispensable tool. Johnson and Smith also cover a number of other equally important, if not titular themes, such as the importance of constitutional philosophy and the fact that our rights are always contextual. Ultimately, this book would be a welcome addition to the library of anyone who wishes to further explore the First Amendment.”
—M. Elizabeth Thorpe, Associate Professor at SUNY Brockport.
“Fear and the First Amendment provides a deep dive into the rhetorical constructions of fear in pivotal First Amendment cases by focusing on this affective dimension’s impact on the People’s most cherished freedoms. Johnson and Smith provide rich and accessible analyses to help us better understand the Court’s complex decision-making processes as they attempt to strike a balance between our freedoms and their limitations, both now and as we move into an uncertain future.”
— Billie Murray, author of Combating Hate and editor of Communication and Democracy
Forthcoming book on understanding the First Amendment
- Russell Weaver, “Understanding the First Amendment,” Carolina Academic Press, 8th ed.
The overarching objective of Understanding the First Amendment is to facilitate student learning efficiency and academic success. Toward this end, it focuses upon core subject matter that is likely to be tested in a law school examination or on the bar examination. The book also provides tools that enable students to organize the course and their understanding in a way that enhances retention. The beginning of each chapter highlights key points of coverage. The end of each chapter indicates essential points to remember. The book strikes a balance between comprehensiveness and selectivity, thus providing students with assurance that they know enough, know it well, but are not overwhelmed by details that are unduly esoteric or irrelevant to their performance needs.
The eighth edition covers all of the recent relevant decisions, including Houston Community College System v. Wilson, Barr v. American Association of Political Consultants, Inc., City of Austin, Texas v. Reagan National Advertising of Austin, LLC, Federal Election Commission v. Cruz, Americans for Prosperity Foundation v. Bonta, Mahanoy Area School District v. B.L., Shurtleff v. City of Boston, Agency for International Development v. Alliance for Open Society International, Inc., Kennedy v. Bremerton School District, Espinoza v. Montana Department of Revenue, Our Lady of Guadalupe School v. Morrisey-Berru, Fulton v. City of Philadelphia, and Carson v. Makin. It also includes a variety of new problems involving new situations that have arisen in First Amendment law.
Robert Post on 303 Creative
- Robert Post, “Public Accommodations and the First Amendment: 303 Creative and ‘Pure Speech’,” SSRN (Sept. 13)
Abstract: In the recent case of 303 Creative v. Elenis, the Court held that the First Amendment precludes the application of a Colorado public accommodations statute to a designer of wedding websites (Lorie Smith) who objected to working for clients involved in same-sex weddings. At stake in the opinion is the important question of how antidiscrimination statutes can be reconciled with the First Amendment.
Gorsuch structured his opinion for the Court on the basis of a simple syllogism. The major premise of the syllogism is that the Smith’s websites are “pure speech”; the minor premise is that the First Amendment forbids the compulsion of “pure speech.” The conclusion is that Colorado cannot apply an antidiscrimination statute to compel Smith to work for clients who would require her to produce websites that she would rather not construct.
Although “pure speech” is not a well-defined First Amendment concept, Gorsuch seeks to establish the major premise of his syllogism on the basis of stipulations to which the parties in 303 Creative agreed. These stipulations are both tendentious and extensive, taken almost verbatim from Smith’s complaint. The article examines these stipulations to show that in 303 Creative Gorsuch defines “pure speech” to consist of bespoke words, images or symbols that are designed to communicate and that reflect a vendor’s own speech. It argues that, absent the parties’ stipulations, Smith’s websites likely should not have been characterized as pure speech.
The article then examines the minor premise of the 303 Creative syllogism. It shows that (1) The premise inaccurately summarizes First Amendment doctrine; (2) The premise would effectively undermine all public accommodation laws, which can be enforced only if vendors are required to provide the “full and equal enjoyment” of their services to customers regardless of race, sex or sexual orientation. This requirement will inevitably compel vendors to engage in “pure speech”; (3) Pure speech is routinely compelled if it is commercial speech; (4) Pure speech cannot be compelled if it is public discourse; and (5) 303 Creative should thus have turned on the question of whether Smith’s websites constituted commercial speech or public discourse.
As written, 303 Creative is so abstract and overreaching that it will empower lower courts to mutilate public accommodations laws at will. The likely outcome is that 303 Creative will be erratically applied in ways that reflect the antecedent political ideology of courts. The Supreme Court itself exemplified this problem by not applying the reasoning of 303 Creative to its own decision in Students for Fair Admissions v. President and Fellows of Harvard, where it used an antidiscrimination statute (Title VI) to alter the educational messages that an expressive association sought to communicate. Much of the confusion of 303 Creative likely stems from the Court’s implicit transplantation of concepts applicable to Free Exercise claims to the distinct and inappropriate landscape of free speech jurisprudence.
- Carlos A. Ball, “First Amendment Exemptions for Some,” Harvard Law Review Forum (forthcoming 2023)
- “The President’s Law and Society Lecture with Robert Post,” St. John's College, YouTube (2023)
Noteworthy new quote of the week
“In this country, we spend a lot of time talking about our First Amendment rights. Much of what we say is wrong.” — Len Niehoff
Coming soon: Citron on Section 230
- Danielle Citron, “How to Fix Section 230,” Boston University Law Review (Forthcoming, Apr. 2023)
Section 230 is finally getting the clear-eyed attention that it deserves. No longer is it naïve to suggest that we revisit the law that shields online platforms from liability for illegality that they enable. The harm wrought is now undeniable, especially for victims of online assaults and intimate privacy violations. Time and practice have made clear that tech companies don’t have enough incentive to remove or otherwise combat online abuse, especially if it generates likes, clicks, and shares. Victims can’t sue sites that earn advertising fees from their suffering. The status quo is particularly costly for women, children, and minorities who lose their ability to speak, work, and love in the face of online abuse. Doing nothing says that society is fine with the vulnerable enduring abuse that robs them of their civil rights and civil liberties.
We need to fix Section 230. Reform must be approached with humility and care, lest it spur platforms to over-or under-moderate in ways that do more harm than good for the very people who most need help. The legislative solution offered here grows out of a decade of experience working with tech companies, victims of online abuse, and legislative staff. While the over-filtering provision, 230(c)(2), should be preserved and affirmed, the under-filtering provision, 230(c)(1), requires revision.
First, the under-filtering provision should not extend to sites that purposefully or deliberately encourage, solicit, or keep up intimate privacy violations, cyber stalking, or cyber harassment. Those bad actors should have no right to invoke the legal shield. Second, the under-filtering provision should be conditioned on a duty of care in certain circumstances. In cases involving intimate privacy violations, cyberstalking, or cyber harassment, platforms would enjoy immunity only if they could prove that they took reasonable steps to address such abuse, even if they failed to tackle it in a particular case. That way, platforms would have a legal incentive to design content moderation practices to address abuse that inhibits self-expression and ruins livelihoods. Rather than an unguided duty of care, lawmakers should specify the obligations involved, drawing on key lessons from the trust and safety field.
Kendrick on free speech
- Leslie Kendrick, “Fundamentals of the First Amendment and Law School Policies on Free Speech,” University of Virginia Law School (Aug. 2023)
Professor Leslie Kendrick discusses First Amendment policies, and the law and norms of free speech in legal education. She spoke as part of the Class of 2026 orientation.
More in the news
- Zara Barker, “City to tighten vendor laws as some continue operating under first amendment ‘loophole’,” Fox 5 San Diego (Sept. 18)
- Len Niehoff, “1st Amendment protections are not absolute,” Detroit News (Sept. 16)
- Angele Latham, “A lawsuit over controversial House sign rules is over. The First Amendment debate is not,” Nashville Tennessean (Sept. 15)
- “California Court Opens Path to Block State Law Banning Gun Marketing to Children,” First Amendment Watch (Sept. 15)
- Graham Piro, “The heckler’s veto strikes again — this time at Washington College,” FIRE (Sept. 15)
- Tesdaye Negussue, “Philadelphia teachers sue district for First Amendment rights violation over asbestos protests,” ABC News (Sept. 14)
- Randall Chase, “Police blocked Del. man from warning of speed trap; he wins $50K judgment,” Free Speech Center (Sept. 7)
2022-2023 SCOTUS term: Free expression and related cases
- 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 is 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.)
- Vidal v. Elster
- O’Connor-Ratcliff v. Garnier
- 303 Creative LLC v. Elenis (argued Dec. 5)
- Jack Daniel’s Properties, Inc. v. VIP Products LLC (argued March 22)
- United States v. Hansen (argued, March 27) (Volokh commentary here)
- Counterman v. Colorado (argued, April 19)
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).
- Murthy v. Missouri
- Molina v. Book
- Stein v. People for the Ethical Treatment of Animals, Inc., et al.
- Speech First, Inc. v. Sands
- O’Handley v. Weber
- Center for Medical Progress v. National Abortion Federation
- Mazo v. Way
- Tingley v. Ferguson
- Frese v. Formella
- National Rifle Association of America v. Vullo
- Moody v. NetChoice, LLC
- NetChoice, LLC v. Moody
- Florida v. NetChoice
- Novak v. City of Parma (cert. denied)
Immunity under Foreign Sovereign Immunities Act
- NSO Group Technologies Limited v. WhatsApp, Inc. (cert. denied)
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.”)
- Mobilize the Message v. Bonta
- North Carolina Sons of Confederate Veterans v. North Carolina Dept. of Transportation
- Price v. Garland
- Keister v. Bell
- Morgan v. Arizona
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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