Table of Contents

First Amendment News 239: A New Text for a New Generation: First Amendment Coursebook for $16, "keeping access to knowledge affordable"

First Amendment textbook

With admirable clarity and brevity, First Things First covers the field of First Amendment law and theory in a readable and accessible way. The book’s unprecedented affordability makes it accessible on another level as well. It is a must for any student of the First Amendment. — Robert Corn-Revere 

The book is titled "First Things First: A Modern Coursebook on Free Speech Fundamentals" and is co-authored by myself, Will Creeley, and David L. Hudson, Jr. with Jackie Farmer. It was underwritten by the Foundation for Individual Rights in Education (FIRE).

Some wanted it in printed form. Hence, it's just been released in paperback and prints out at a modest 316 pages. It sells new for an ever so modest $16.00 — a tad more than it costs to see a movie.

Three Objectives 

Available as an e-book or in paperback, this textbook was designed for a new generation of students studying free speech law. It aims to do three main things:

  1. dramatically change how the law of free expression is presented;
  2. enhance the educational experience in novel and engaging ways; and
  3. reduce the bloated length and inflated prices of typical free speech coursebooks.

Written primarily for undergraduate students, the book introduces readers to First Amendment issues related to topics such as student speech, freedom of the press, civil rights, LGBTQ rights, defamation, privacy, government speech, public employee speech, advertising, music censorship, and artificial intelligence. And yes, it also covers the history and text of the First Amendment and discusses key free speech doctrines such as overbreadth in a chapter titled "First Amendment Tool Kit." Additionally, the text contains helpful study-aid summaries and questions.

The $2.99 e-book version, which came out late last year, includes scores of audio and video links and photographs, all at no extra cost. Among other places, the e-book version is being used by Professor Stephen D. Solomon at the NYU Arthur L. Carter Journalism Institute. Says Solomon:

“Engaging” is not a word typically used for law textbooks, but First Things First sets the standard for teaching free speech law. A generation of students who have grown up with multimedia will find this textbook compelling. It combines clearly-written case narratives with frequent excursions to a rich trove of other online material—including video and audio files—that provide additional legal and historical context. And all this costs just $2.99, making it a great option for law courses as well as a supporting text that will enrich a wide range of courses in journalism, history, and politics.

Given the low cost of this e-text, it can be assigned as supplemental materials to complement any other text.

Law School Adoption 

Prof. Jennifer Kinsley

The e-book was recently adopted by Associate Dean Jennifer Kinsley of the Salmon P. Chase College of Law at Northern Kentucky University. Here is how she described her classroom experience with the coursebook.

I wanted to pass along that I am using your FTF e-book this semester with my Constitutional Law 2 students. We are a large group of about 60 students, so it can be a challenge to stir up conversation that keeps everyone engaged with that large of a class, but your e-book is doing just the trick. I’ve gotten wonderful feedback so far from the students and am enjoying all of the video and audio links myself. (The Law and Order clips are just perfect!) Kuddos to you on this amazing resource for students – and on keeping access to knowledge affordable. As an educator, I very much appreciate this valuable resource.

We are encouraged that the current version has already received a welcome audience in the undergraduate and law school world.

SCOTUS Grants Review in Presidential Electors Case

The case is Chiafalo v. Washington. It is the fourth First Amendment free expression case the Court has agreed to review this term. (This case has been consolidated with Colorado Department of State v. Baca.)

The issue raised in Chiafalo as noted in SCOTUSBlog is:

Whether enforcement of a Washington state law that threatens a fine for presidential electors who vote contrary to how the law directs is unconstitutional because a state has no power to legally enforce how a presidential elector casts his or her ballot and a state penalizing an elector for exercising his or her constitutional discretion to vote violates the First Amendment.

  • By an 8-1 vote, the Washington Supreme Court denied the First Amendment claim raised.
  • Counsel of Record for Petitioners: Lawrence Lessig (cert. petition)

Headline: "New Department of Education First Amendment grant regulations have real promise, but require caution"

This from Robert Shibley writing for FIRE:

[Recently,] the Department of Education released a proposal for a new rule that would, among other things, tie grant funding from the department to compliance with the First Amendment. FIRE welcomes efforts from the Department of Education to ensure that our nation’s colleges and universities take seriously both the First Amendment and their own institutional promises of free speech, academic freedom, and freedom of association.

There are two provisions in the department’s new, 203-page proposed rule that fall within FIRE’s interests. The first requires public and private universities to live up to either the First Amendment or their institutional free expression promises, respectively, if they wish to receive Education Department grant money. The second would require public universities receiving such grants to restore freedom of association for student groups on campus, permitting them to determine their own membership and leadership standards.

To the extent that the proposed rule would condition the receipt of federal grants on meeting already-existing constitutional obligations, these requirements should be uncontroversial. FIRE also supports efforts to protect religious students’ freedom of association at public universities, and strongly supports the right and ability of belief-based groups, religious or otherwise, to maintain belief-based requirements for members and leaders. . .

However, rulemaking in this area is not without risk, as we pointed out when President Trump signed his March 21 executive order on campus free speech, which prompted this rulemaking process. FIRE has warned against any plan that would turn a college or university’s loss in court into a catastrophic loss in federal funding, for example, because of the distorting impact it would have on the behavior of both colleges and the courts. (Universities’ willingness to engage in outrageous behavior in the name of Title IX, which does carry the threat of a funding “death penalty,” provides ample reason to worry.) The proposed rule reduces, but does not eliminate, these concerns by providing a range of potential sanctions and by its application only to grant programs and not federal student aid.

National Archives Exhibit Alters Content. . . but Apologizes When Caught

This from Joe Heim writing for the Washington Post: 

The Archives acknowledged in a statement this week that it made multiple alterations to the photo of the 2017 Women’s March showcased at the museum, blurring signs held by marchers that were critical of Trump. Words on signs that referenced women’s anatomy were also blurred.

In the original version of the 2017 photograph, taken by Getty Images photographer Mario Tama, the street is packed with marchers carrying a variety of signs, with the Capitol in the background. In the Archives version, at least four of those signs are altered.

A placard that proclaims "God Hates Trump" has "Trump" blotted out so that it reads "God Hates." A sign that reads "Trump & GOP — Hands Off Women" has the word Trump blurred out.

When news of the alteration got out, the National Archives apologized for altering Image of 2017 Women’s March. As reported in The New York Times:

The National Archives and Records Administration, which calls itself the country’s record keeper, apologized on Saturday for altering a photo of protesters at the 2017 Women’s March that blurred out references critical of President Trump.

"We made a mistake," began a statement the archives released on Saturday.

The photo of protesters holding signs was part of an exhibit, "Rightfully Hers: American Women and the Vote," which examined the struggle of women to gain the right to vote."

First Amendment Lawyer Richard J. Ovelmen Dies

As reported in the Miami Herald:

From defending First Amendment cases to representing activists against developers — even when the developer is a world-famous soccer player — Richard J. Ovelmen was passionate about the law.

Richard J. Ovelmen

For more than 40 years, Ovelmen practiced constitutional, land use, local government, media, class action and intellectual property law. First Amendment cases were his specialty.

Ovelmen was legal counsel for the Miami Herald when Jim McGee and Tom Fiedler, working with investigative editor James Savage, corroborated a tip that Gary Hart, the Colorado senator who was a Democratic front-runner in the 1988 race for the presidency against George H.W. Bush, was fooling around with a woman on a yacht called Monkey Business. The resultant series of stories led to Hart pulling out of the race.

David Bossie & Floyd Abrams Revisit Citizens United


New & Noteworthy From The Volokh Conspiracy

In Ferguson v. Waid, handed down Jan. 8, the District Court had concluded that Sandra Ferguson, a former client of Brian Waid's but also a lawyer herself, had libeled Waid in online reviews; it awarded Waid damages but also issued an injunction. The Ninth Circuit—in a nonbinding decision, but one that I expect will be fairly influential—held that the injunction was overbroad, but could be constitutional if narrowed to ban only repeating statements found to be defamatory.

Coming This May: Smolla on Free Speech

In the personal and frank Confessions of a Free Speech Lawyer, Rodney A. Smolla offers an insider's view of the violent confrontations in Charlottesville during the "Summer of Hate." Blending memoir, courtroom drama, and a consideration of the unresolved wound of racism in our society, he shines a light on the conflict between the value of free speech and the protection of civil rights.

Smolla has spent his career in the thick of these tempestuous and fraught issues, from acting as lead counsel in a famous Supreme Court decision challenging Virginia's anti-cross burning law, to being co-counsel in a libel suit brought by a fraternity against Rolling Stone magazine for publishing an article alleging a gang-rape initiation ritual. And yet, he has also been active as a university leader, where he has served as Dean of three law schools and President of one, railing against hate speech and sexual assault on American campuses.

Well before the tiki torches cast their ominous shadows across the nation, the city of Charlottesville sought to relocate the "Unite the Right" rally; Smolla was approached to represent the alt-right groups. Though he declined, he came to wonder what his history of advocacy had wrought. Feeling unsettlingly complicit, he joined the Charlottesville Task Force, where he realized that the events that transpired had meaning and resonance far beyond a singular time and place. Why, he wonders, has one of our foundational rights created a land in which such tragic clashes happen all too frequently?

Forthcoming Book: Nossel on Defending Free Speech

Online trolls and fascist chat groups. Controversies over campus lectures. Cancel culture versus censorship. The daily hazards and debates surrounding free speech dominate headlines and fuel social media storms. In an era where one tweet can launch—or end—your career, and where free speech is often invoked as a principle but rarely understood, learning to maneuver the fast-changing, treacherous landscape of public discourse has never been more urgent.

In Dare To Speak, Suzanne Nossel, a leading voice in support of free expression, delivers a vital, necessary guide to maintaining democratic debate that is open, free-wheeling but at the same time respectful of the rich diversity of backgrounds and opinions in a changing country. Centered on practical principles, Nossel’s primer equips readers with the tools needed to speak one’s mind in today’s diverse, digitized, and highly-divided society without resorting to curbs on free expression.

At a time when free speech is often pitted against other progressive axioms—namely diversity and equality—Dare To Speak presents a clear-eyed argument that the drive to create a more inclusive society need not, and must not, compromise robust protections for free speech. Nossel provides concrete guidance on how to reconcile these two sets of core values within universities, on social media, and in daily life. She advises readers how to:

  • Use language conscientiously without self-censoring ideas;
  • Defend the right to express unpopular views;
  • And protest without silencing speech.

Nossel warns against the increasingly fashionable embrace of expanded government and corporate controls over speech, warning that such strictures can reinforce the marginalization of lesser-heard voices. She argues that creating an open market of ideas demands aggressive steps to remedy exclusion and ensure equal participation.

Replete with insightful arguments, colorful examples, and salient advice, Dare To Speak brings much-needed clarity and guidance to this pressing—and often misunderstood—debate."

Forthcoming Book: Free Speech & Racism

The question of free speech is never far from the headlines and frequently declared to be in crisis. Starting from the observation that such debates so often focus on what can and cannot be said in relation to race, Gavan Titley asks why racism has become so central to intense disputes about the status and remit of freedom of speech.

Is Free Speech Racist? moves away from recurring debates about the limits of speech to instead interrogate the use of the principle of free speech in today’s multicultural and intensively mediated societies. This involves tracing the ways in which free speech has been mobilized in far-right politics, in the recycling of ‘race realism’ and other outdated forms of knowledge, and in nationalist identity politics. Where there is intense political contestation and public confusion as to what constitutes racism and who gets to define it, ‘free speech’ has been adopted as a primary mechanism for validating, amplifying and re-animating racist ideas and racializing claims. As such, free speech ideas reveal much about the ongoing life of race and racism in contemporary society.

Forthcoming Book: Free Speech Rationales

Forthcoming Scholarly Article: Zick on Public Protest and Civil Liabilities

Prof. Timothy Zick

This Article holistically examines the threat that civil liabilities and costs pose to effective political protest. The immediate impetus for examining the costs of dissent is the appearance of new civil liability claims, including “negligent protest,” “conspiracy to protest,” and “malicious petitioning.” However, these claims merely add to an already challenging and burdensome protest environment, which imposes legal, regulatory and cultural restrictions on protest activities. In addition, a wide variety of more traditional costs ranging from permit fees to punitive damages also affects contemporary protest. Owing to their potential chilling effect on expressive activities, courts have special obligations to review both new theories and traditional costs skeptically, to demand precision in terms of liability standards, and to reject civil liability when it is inconsistent with First Amendment rights and commitments. Applying these guidelines, the Article urges courts to reject new theories of liability such as “negligent protest” and “malicious petitioning.” It also encourages courts and lawmakers to more carefully consider the First Amendment implications of other aspects of the cumulative – and rising – costs of dissent.

New Scholarly Article on "City Speech"

  • Yishai Blank, "City Speech," Harvard Civil Rights-Civil Liberties Law Review (2019). Abstract:
Prof. Yishai Blank

Cities speak. A rich array of expressive activities, city speech, surrounds us. Cities topple confederate monuments, fly LGBT pride flags on City Hall, erect monuments commemorating victims of sexual violence, and issue statements that oppose the policies of state and federal governments. They disseminate information concerning climate change, hydraulic fracking, and the impact of minimum wage on poorer populations. They participate in statewide ballot initiatives, and they hire lobbyists to advocate for litigation. But cities have to obtain permission from states to do these things, and increasingly, they are being silenced. In our era of political polarization, states have become hostile to local policymaking, and thus have begun to employ measures to prohibit a variety of expressive activities by cities.

City speech embodies the values of localism, of the First Amendment, and of federalism. It promotes democratic self-government, policy experimentation and innovation, representation of minority views, and economic efficiency and redistribution. It also promotes the ongoing search for truth and the flourishing of an open marketplace of ideas. Cities are structured, legally and politically, to excel at speech. They are separately and democratically elected institutions that function as frontline posts for policymaking, regularly facing economic, social, environmental, and political challenges. As relatively small, nimble, and responsive entities, cities are thus well placed to stir democratic civic engagement in politics. Cities are diverse in their social, economic, religious, ethnic, racial, and political composition, hence their plural expressions reflect the diverse nature of our nation better than other levels of government. These values are threatened by the silencing measures recently adopted by many states.

This Article proposes that city speech should enjoy the constitutional protection of the First Amendment. Such protection is necessary for the values of city speech to withstand state-led threats. In contrast to one traditional view of cities as creatures of the state, this Article argues that there is a doctrinal path for the recognition of city speech as a constitutional and organizational right. Cities are hybrid creatures of government and corporation. Legal doctrine has long viewed them as constitutional property right-bearers but has denied them a variety of government privileges. Simultaneously, corporations have gained a far-reaching recognition of their right to speak. And while the government speech doctrine protects various municipal expressions against private dissenters, it leaves cities unarmed against silencing measures by their own states. Giving our cities free speech rights is not only doctrinally consistent and normatively justified; it has become necessary in order to protect the democratic vitality our cities symbolize."

Three New Scholarly Articles

Podcast: Trump and the First Amendment

Latest Podcast from Clear & Present Danger

In this episode we will explore:

  • How Tsarist Russia was the last European great power to abolish preventive censorship;
  • How the fall of the Tsarist regime led to a brief period of full press freedom;
  • How, once in power, the very first legislative act of the Bolsheviks was to suppress the “bourgeois press” by closing down hundreds of publications and print shops;
  • How Lenin and Trotsky defeated Bolshevik and socialist opponents who demanded an end to press censorship in revolutionary Russia;
  • How Lenin combined suffocating censorship with terror against “class enemies”;
  • How Stalin expanded Lenin’s repressive censorship machinery and radicalized the terror, killing millions of people;
  • How Mussolini went from working as a socialist journalist to founding a fascist newspaper;
  • How fascist violence and intimidation paved the way for Mussolini to assume power;
  • How Mussolini combined censorship and propaganda to ensure ideological uniformity of the press;
  • How fascist blackshirts and secret police kept political opponents cowed through surveillance, intimidation, and murder; and
  • How a novel on interracial love infuriated Mussolini and caused book censorship to be severely expanded.

Why have kings, emperors, and governments killed and imprisoned people to shut them up? And why have countless people risked death and imprisonment to express their beliefs? Jacob Mchangama guides you through the history of free speech from the trial of Socrates to the Great Firewall.

More News, Editorials & Op-Eds

2019–2020 SCOTUS Term: Free Expression & Related Cases

Opinions or Judgments Handed Down

Cert. Granted

Pending Petitions

Petitions Denied

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