There has been a lot of talk in recent years about censorship on college campuses, quite often at the behest of liberal or progressive students and faculties. Many books and articles have been written on this subject and many cases litigated on it. Beyond doubt, the topic of college censorship is one of the main First Amendment issues of our time. But is the problem really as great as we have been led to believe?
Enter Professor Mary Anne Franks. Writing in the Virginia Law Review Online, she argues that there is indeed room for doubt — considerable doubt — when it comes to the claim that "America’s institutions of higher learning have been transformed from vibrant marketplaces of ideas to intolerant and censorious safe spaces." Here is how she puts it:
While there have been a handful of violent incidents involving conservative speakers, the vast majority of universities have experienced no such controversies. The attempts at ideological suppression that do occur on campuses are far more likely to target leftist views than right-wing views. In general, students remain more open-minded and tolerant than the general population, and universities remain some of the most robust free speech institutions in the country.
Furthermore, she contests the idea of any widespread liberal suppression of conservative speech on college campuses:
The assertion that conservative ideas are being violently suppressed on college campuses is as untrue today as it was in the 1970s. While there have been a handful of violent incidents involving conservative speakers, the vast majority of universities have experienced no such controversies. The attempts at ideological suppression that do occur on campuses are far more likely to target leftist views than right-wing views. In general, students remain more open-minded and tolerant than the general population, and universities remain some of the most robust free speech institutions in the country.
This "false" narrative "continues to be repeated by politicians, civil libertarians, university administrators, media outlets, and scholars." As Franks sees it, this is problematic for at least two reasons:
One is that, in Orwellian fashion, it is used to justify the imposition of laws and policies that severely restrict students’ right to protest—censorship in the name of free speech. The impact of these regulations is not likely to be evenly distributed but will instead further chill the speech of already marginalized groups. The false narrative of liberal intolerance has particularly vilified the responses of women, nonwhite men, and sexual minorities to the provocations of far-right speakers and other situations seemingly calculated to incite campus conflict...
The second harm inflicted by the false narrative of the college free speech crisis is how it undermines the legitimacy of the university as a free speech institution. This is particularly alarming in our current historical moment, when our nation’s leaders have demonstrated open and sustained hostility to free speech and have degraded every value the right was intended to protect: truth, autonomy, and democracy...
Later on in her article, Franks sets her sights on something said by America's premiere First Amendment lawyer:
In 2016, Floyd Abrams, one of the most prominent First Amendment lawyers in the country and the author of the book The Soul of the First Amendment, stated that the single greatest threat facing free speech today “comes from a minority of students who strenuously and . . . contemptuously, disapprove of the views of speakers whose view of the world is different from theirs, and who seek to prevent those views from being heard.” Such a claim is shocking not only because it so grotesquely mischaracterizes the current state of free speech on college campuses, but because it ignores so many other urgent, alarming, and effective direct attacks on free speech on campuses and elsewhere.
And the biggest villain in all of this is the one once hailed in Reno v. American Civil Liberties Union (1997):
The true threat to free speech on college campuses is posed not by university norms on free speech, but by the attack on those norms by the Internet culture of free speech. The Internet model of free speech is little more than cacophony, where the loudest, most provocative, or most unlikeable voice dominates. Whatever else might be said in praise of such a model, it does little to promote knowledge or encourage a diversity of voices.
→ See also: Mary Anne Franks, The Cult of the Constitution (Stanford Univ. Press, 2019).
- Lee C. Bollinger, "'Free Speech on Campus Is Doing Just Fine, Thank You," The Atlantic (June 12, 2019)
Trump campaign sues TV station over super PAC ad
This from Jonathan Easley over at The Hill:
President Trump’s reelection campaign on Monday filed a defamation lawsuit against a Wisconsin television station for running an ad cut by the liberal super PAC Priorities USA alleging the president called the coronavirus a “hoax.”
The lawsuit seeks unspecified monetary damages and legal fees from the NBC affiliate, WJFW-NBC of Rhinelander, accusing the station of having “perpetrated a fraud on the public by recklessly broadcasting [Priorities USA’s] defamatory and false advertisement, which WJFW-NBC knew or should have known was produced through the use of technology that depicted a clearly false statement.”
“It is disappointing that WJFW-NBC would knowingly continue to broadcast this blatantly false ad and perpetrate falsehoods on the American people, even after the Trump campaign provided proof in good faith of the ad’s falsity,” Jenna Ellis, senior legal adviser to the Trump campaign, said in a statement. . . .
Priorities USA, the largest Democratic super PAC, which is backing presumptive nominee former Vice PresidentJoe Biden, has put nearly $7 million behind the ad, which is running in Florida, Michigan, Minnesota, Pennsylvania and Wisconsin.
The ad splices together audio clips of Trump downplaying the virus over a graphic showing the number of cases on the rise.
. . . . “Coronavirus. They’re politicizing it,” Trump said in February. “We did one of the great jobs. You say, ‘How’s President Trump doing?’ ‘Oh, nothing, nothing.’ They have no clue. They don’t have any clue. ... And this is their new hoax. But you know we did something that’s been pretty amazing.”
Priorities USA is standing by its ad, arguing Trump was using the word “hoax” to downplay the virus and shift the blame for the outbreak away from his administration. . . .
- Editorial, "Trump’s First Amendment Education," Wall St. Journal (May 4)
First Amendment case against FTC to be argued in the 9th Circuit
The case is Federal Trade Commission v. OTA Franchise Corp. The case arose when the Federal Trade Commission sued a California-based investment training scheme Online Trading Academy (OTA), headed by Eyal Shachar. The FTC alleged that OTA used false or unfounded earnings claims to sell “training programs” costing as much as $50,000. The federal district court granted a preliminary injunction against OTA. Judge James V. Selna's order provided, among other orders:
I. "Prohibited Business Activities"
II. "Prohibition on Restriction of Consumers' Speech"
III. "Prohibition on Collection of Loan Payments," and
IV. "Prohibition of Release of Customer Information"
- "The Preliminary Injunction is a Constitutionally Disproportionate Response Based on a Distorted Reading of the Record"
- "The District Court Failed to Apply the Correct First Amendment Standard in Granting the Preliminary Injunction"
- "The Asset Freeze Provisions of the Preliminary Injunction are Unauthorized by Law and Violate the First Amendment"
- "The Provisions Enjoining OTA’s Promotional Claims are Unconstitutionally Vague and Overbroad"
→ Counsel of record: Robert Corn-Revere (with Ronald G. London & Wayne W. Call, Mark Eisenhut, William P. Cole, Samuel G. Brooks, and Chris C. Scheithauer)
Ryan Morrison & Alex Baiocco on stay-at-home orders and freedom of assembly
This from the Institute for Free Speech:
A federal judge in Kentucky recently declared “constitutional rights still exist” and ruled that a mayor’s pandemic-related executive order violated the First Amendment.
While constitutional rights can’t be extinguished, temporary orders to protect public health, if neutrally applied, can prohibit people from gathering in the same physical space. In New Mexico, a federal judge rejected a First Amendment challenge to the state’s limit on the number of people who may gather in one building, holding:
The right to expressive association is not an absolute right and can be infringed upon if that infringement is (i) unrelated to the suppression of expressive association; (ii) due to a compelling government interest; and (iii) narrowly tailored.
Whether speech or assembly is for religious or secular purposes, government constraints on First Amendment activity in times of crisis still must face strict judicial scrutiny. As the federal judge in Kentucky noted, even as government pursues “a compelling interest of the highest order through its efforts to contain the current pandemic,” its efforts must be “‘narrowly tailored to advance that interest.’” Government cannot be “selective” in how it burdens First Amendment conduct.
Recognizing that current circumstances require both legal and commonsense time, place, and manner rules for free expression, government must enforce restrictions neutrally, regardless of the content of a person’s speech, with the least restrictive means available. Accordingly, government cannot prohibit conduct “of equally dangerous (or equally harmless) activities” that are “permitted on the basis that they are ‘essential.’” And when activity is restricted, it must be with the narrowest practical means and not more restrictively than commercial activity is limited.
For instance, individuals can drive to restaurants to buy food if they remain in their vehicles and may travel to supermarkets to obtain essential items. Accordingly, citizens should be allowed to exercise their First Amendment rights from their cars, either while obeying traffic laws or parked in a parking lot. Likewise, people should be allowed to assemble and demonstrate their political views if they observe social distancing and utilize personal protective equipment (PPE), just as they are allowed to gather to buy goods in retail stores selling life sustaining items. . . .
→ Read the authors' discussion of various state statutes.
- Dan Backer, "COVID Protests: First Amendment Is an 'Essential' Service, Real Clear Politics" (April 22)
Running report on COVID-19 and the First Amendment
- Brian J. Buchanan, "Covid-19 and the First Amendment: A Running Report (May 1)," The Free Speech Center (May 1)
Abrams Institute weighs in on rebroadcasting of court proceedings dispute
- "Floyd Abrams Institute supports challenge to Maryland law prohibiting the rebroadcast of court recordings," First Amendment Watch (April 29). Here are some excerpts from the folks over at First Amendment Watch:
On April 13th, the Floyd Abrams Institute for Freedom of Expression at Yale Law School filed an amicus brief in the Fourth Circuit Court of Appeals in support of a First Amendment challenge to a Maryland statute that prevents individuals from disseminating courtroom audio transcripts. . .
The Institute’s brief was filed in support of a lawsuit, Soderberg v. Carrion, brought by a group of journalists and court-transparency activists in May 2019. The plaintiffs are represented by the Georgetown Institute for Constitutional Advocacy and Protection (ICAP) and Maryland Volunteer Lawyers for the Arts, and have also received amicus briefs from the Reporters Committee for Freedom of the Press and the Cato Institute.
“This case is about ensuring that Marylanders can better understand exactly what’s happening inside their courtrooms. There’s no good justification for preventing journalists and criminal-justice reform advocates from publicly sharing accurate accounts of what happens in open court,” said Nicolas Riley, senior counsel at the ICAP.
The Abrams brief, prepared by the Media Freedom & Information Access Clinic at Yale Law School, argues that the blanket ban on audio recordings violates the public’s First Amendment right of access to judicial records. . . .
→ Abrams Institute Amicus brief (David Schulz, counsel of record)
→ Original complaint (Daniel B. Rice, counsel of record)
Volokh on the First Amendment and broad juror intimidation statutes
- Eugene Volokh, "The First Amendment and broad juror intimidation statutes," The Volokh Conspiracy (May 1)
[Recently,] the North Carolina Supreme Court handed down State v. Mylett, in which the UCLA First Amendment Clinic had filed an amicus brief on behalf of the Pennsylvania Center for the First Amendment. The court reversed the defendant's conviction on the grounds that there wasn't enough evidence that he conspired to intimidate a juror (congratulations on that to Rob Heroy, the defendant's lawyer), and therefore didn't need to reach our arguments that the juror-intimidation statute, as interpreted by the North Carolina Court of Appeals, was overbroad.
But I thought I'd pass along our amicus brief for those who are interested in such things—and of course I wanted to thank our superb pro bono local counsel, Noell Tin of Tin Fulton Walker & Owen, and my student Bruce Lee, who worked on the brief with me. (Summary of Argument here)
Section 14-225.2 restricts speech and not just conduct, and restricts it based on its content. That is permissible if the statute is read as limited to "true threats," a constitutionally unprotected category of speech. But the jury was not instructed that it had to find a true threat, and the Court of Appeals rejected the dissenting judge's call to read the statute as limited to true threats. The Court of Appeals decision should therefore be reversed.
Forthcoming book on 'How the News Media Taught Us to Love Censorship'
- Sharyl Attkisson, "Slanted: How the News Media Taught Us to Love Censorship and Hate Journalism" (Harper, Nov. 24, 2020)
The five-time Emmy Award-winning investigative reporter and New York Times bestselling author of Stonewalled and The Smear uncovers how partisan bias and gullibility are destroying American journalism.
The news as we once knew it no longer exists. It’s become a product molded and shaped to suit the narrative. Facts that don’t fit are omitted. Off-narrative people and views are controversialized or neatly deposited down the memory hole. Partisan pundits, analysts and anonymous sources fill news space leaving little room for facts. The line between opinion and fact has disappeared.
In Slanted, Sharyl Attkisson reveals with gripping detail the struggles inside newsrooms where journalism used to rule. For the first time, dozens of current and former top national news executives, producers and reporters give insider accounts, speaking with shocking candor about their industry’s devolution.
Americans know their news diet is now filled with fast food concoctions created from talking point recipes devised by partisan and corporate interests. They see a record number of fact mistakes made by some of the world’s most formerly well-respected media outlets . . . often with no apologies. The media largely blames Donald Trump. But as this autopsy shows, the death of the news as we once knew it is self-inflicted. And the weapon was the narrative.
Sharyl Attkisson also finds reason for hope and argues that courageous, counternarrative news reporting can revive journalism.
Forthcoming book on book burning
- Richard Ovenden, "Burning the Books: A History of the Deliberate Destruction of Knowledge" (Belknap Press, Oct. 13, 2020)
Forthcoming book on 'death' of free speech in America
- Ellis Cose, "The Short Life and Curious Death of Free Speech in America" (Amistad, Sept. 15, 2020)
Forthcoming book on 'The Free Speech Wars'
- Charlotte Lydia Riley, "The Free Speech Wars: How Did We Get Here and Why Does It Matter" (Manchester University Press, Jan. 19, 2021)
- Jonathan A. Arbel & Murat Mungan, "The Case Against Expanding Defamation Law," Alabama Law Review (2019)
- Stone T. Hendrickson, "Salvaging Garcetti: How a Procedural Change Could Save Public Employee Speech," Alabama Law Review (2019)
- Kenneth Chestek, "Of Metaphors and Magic Wands: Are Corporations Really People?," Mississippi Law Journal (2019)
- Anna Cecile Pepper, "Walking Out the Schoolhouse Gates," Virginia Law Review Online (2019)
Garrett Epps on Mckesson v. Doe (cert. den.)
- Garrett Epps, "The Important First Amendment Principle Now at Risk," The Atlantic (April 22) (re Mckesson v. Doe)
- "The Lenny Bruce Obscenity Trial - The Obscenity Circus" (Episode 1 with Lindsay Graham host)
- "The Lenny Bruce Obscenity Trial - I’m Not a Comedian" (episode 2 with Lindsay Graham host)
- "The Lenny Bruce Obscenity Trial - Lenny’s Impact," (episode 3, with Brett Gary, a professor at NYU who studies media and American culture)
- Collins & Skover, "The Trials of Lenny Bruce: The Fall & Rise of an American Icon" (e-book)
Coming: FIRE Student Network’s 2020 Summer Conference
- Sonia Deel, "Announcing the FIRE Student Network’s 2020 Summer Conference," FIRE (April 30)
FIRE is thrilled to announce the 2020 FIRE Student Network Summer Conference will take place July 24-26 in Philadelphia.
FIRE’s annual summer conference is a weekend-long, intensive gathering designed to teach students about their rights and to provide them the necessary tools to assert and defend them on campus. Our conference brings together college students from around the country and across the ideological spectrum who share a passion for free speech and due process.
In addition to our keynote speakers (to be announced soon!), the 2020 FSN conference will feature dynamic and thought-provoking workshops led by FIRE staff. Working directly with attendees, FIRE staffers will educate students about the First Amendment and provide practical lessons about how to successfully stand up for their free speech rights on campus.
The event is free to attend and open to current students at U.S. colleges and universities, including graduate students and incoming freshmen. Housing and meals will be provided, and a travel reimbursement for up to $300 per student will be available to help students travel to and from Philadelphia.
- Eugene Volokh, "'Clear, compelling, written language is required to waive' free speech rights," The Volokh Conspiracy (May 5)
- Alex Morey, "Garden City Community College to pay hefty settlement for violating faculty rights" FIRE (May 1)
- Adam Steinbaugh, "Dickinson College seeks to identify, but says it won’t punish, operator of anonymous ‘Men of Dickinson’ Instagram account," FIRE (May 1)
- David L. Hudson, Jr., "Student had First Amendment right to post about coronavirus," The Free Speech Center (May 1)
- David L. Hudson, Jr., "Miss. appeals court strikes down law against causing injury through internet or computer,"
- The Free Speech Center (April 29)
- "ACLU sues NH city police department for violating resident’s First Amendment right to record police," First Amendment Watch (April 28)
2019–2020 SCOTUS term: Free expression & related cases
Opinions or judgments handed down
- Thompson v. Hebdon (per curiam with Ginsburg, J., statement concurring in remand)
- United States v. Sineneng-Smith (decided on non-First Amendment grounds)
- United States v. Sineneng-Smith (argued Feb. 25) [soliciting unlawful action/overbreadth]
- Carney v. Adams (TBD) [standing / judicial elections]
- United States Agency for International Development v. Alliance for Open Society International Inc. (May 5) [federal funding/compelled speech]
- Barr v. American Association of Political Consultants, Inc. (May 6) [automated-call restriction]
- Chiafalo v. Washington (consolidated w/ Colorado Department of State v. Baca) (May 13) [elections]
- Fulton v. City of Philadelphia (TBD) [religious expression: free exercise & free speech claims]
- Evans v. Sandy City, Utah
- Bruni v. City of Pittsburgh
- Waggy v. United States
- Schmitt v. LaRose
- Austin v. Illinois
- Reisman v. Associated Faculties of the University of Maine
- National Association for Gun Rights, Inc. v. Mangan
- Institute for Free Speech v. Becerra
- Americans for Prosperity Foundation v. Becerra
- Thomas More Law Center v. Becerra
- Jarchow v. State Bar of Wisconsin
- Facebook, Inc. v. Duguid
- Arlene’s Flowers Inc. v. Washington
- Price v. City of Chicago, Illinois
- Charter Communications, Inc. v. Gallion
- Vugo Inc. v. City of New York, New York
- Waronker v. Hempstead Union School District
- Mckesson v. Doe
- Archdiocese of Washington v. Washington Metropolitan Area Transit Authority
- Elster v. City of Seattle
- Doe 1 v. Federal Election Commission
- Fleck v. Wetch
- New York Republican State Committee v. Securities and Exchange Commission
- EMW Women’s Surgical Center v. Meier
- Carter v. Massachusetts
- Capital Associated Industries Inc. v. Stein
- National Review, Inc. v. Mann (Alito, J., dissenting from denial of cert.)
- Competitive Enterprise Institute v. Mann (Alito, J., dissenting from denial of cert.)
- Libertarian National Committee Inc. v. Federal Election Commission
- Miller v. Inslee
- Buchanan v. Alexander
- Lipschultz v. Charter Advanced Services, LLC
- Gatehouse Media New York Holdings Inc. v. New York
- Dyroff v. Ultimate Software Group Inc. (interpretation of Section 230(c)(1))
- Force v. Facebook Inc. (interpretation of Section 230(c)(1))
- Uzuegbunam & Bradford v. Preczewski, et al (nominal damages and mootness in campus speech context)
First Amendment related: Cert. denied
- Olivas-Motta v. Barr (void for vagueness, “moral turpitude”)
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