Table of Contents
First Amendment News 255: Martin Redish and Julio Pereyra on political fraud and the First Amendment
Any valid democratic theory of the First Amendment must protect the ability of self-governing citizens to discover and vote in line with their true best interests. Because both regulating and not regulating political fraud creates risks to the self-governance goals of the First Amendment, protecting self-government requires balancing these competing harms.
— Redish & Pereyra
Martin Redish— the Northwestern University law professor who invented the modern commercial speech doctrine — continues to have his finger on the cultural and constitutional pulses of the day, especially when they concern free speech. In addition to the five books he's authored on free speech (and another to be published by Cambridge University Press), professor Redish has written scores of timely and topical articles on the First Amendment — this as part of his collection of 116 scholarly articles.
In his latest scholarly salvo, Redish has joined forces with Julio Pereyra, a litigation lawyer at O'Melveny's D.C. office.
Together they have just published "Resolving the First Amendment's Civil War: Political Fraud & the Democratic Goals of Free Expression" Arizona Law Review (2020). Below are some excerpts from their article (headings have been added):
The goal in resolving [the] internal conflict between competing and powerful First Amendment-based interests is to find some method by which we can protect false political speech that fosters the foundational First Amendment value of democratic facilitation, yet simultaneously deny constitutional protection to false expression that endangers the democratic process. The goal of our Article, then, is to shape a First Amendment standard for determining when to protect and when not to protect false political speech to achieve this goal. One should therefore not be surprised that today we choose to focus on the need to protect false speech with the competing First Amendment-based need to deter or suppress what we have chosen to call “political fraud,” i.e., false speech that undermines the First Amendment’s fundamental goal of promoting political self-government.
The power of foreign powers
The need for a resolution to this question is particularly timely, as partisan actors and hostile foreign powers intent on spreading misinformation to achieve political goals has dominated recent elections. These forms of democratically hostile actors have long been problematic, and their willingness to have elections “turn on rumors, innuendo, and outright fabrication, [and] in effect defeat the entire democratic process” raises grave concerns about the continuing vitality of this facet of the political process. In the same way that economic fraud undermines the functioning of markets, these political frauds have undermined the “marketplace of ideas” as a means for achieving correct political outcomes.
The impact of social media & algorithms
The main reason for this renewed constitutional scrutiny is the revolutionary interconnectivity and ease of access to information provided by the Internet, which has exponentially increased the level of risk posed by political fraud.19 As the Internet has grown into the dominant source for news, commentators have warned that it “doesn’t just reflect reality anymore; it shapes it.” Problematically, this reality is not one shared across constituencies but instead one that reflects “a realm of siloed communities that experience their own reality and operate with their own facts.” Because social media algorithms aim at giving “people news that is popular or trending, rather than accurate or important,” they do little to check these erosions of intersectional discourse.
The first Part of this Article establishes a doctrinal baseline by surveying and attempting to explain the often confusing network of Supreme Court decisions concerning First Amendment protection for consciously false statements as part of the political process.
In the Part that follows, we explain the harms of political fraud, specifically linking those harms to the proper functioning of the democratic process, which the First Amendment is designed to protect.
In the final Part, we propose our First Amendment approach to political fraud, which includes a number of substantive and procedural limitations designed to deter the weaponization of the power to regulate political fraud by those in power as a means of chilling or suppressing expression.
- Spencer Overton, "State Power to Regulate Social Media Companies to Prevent Voter Suppression," University of California, Davis Law Review (2020)
$2.8 billion defamation lawsuit filed against NBC
Over at First Amendment Watch, they are reporting that:
SmileDirectClub, a company that sells teeth straightening kits directly to consumers, has sued NBC News and reporter Vicky Nguyen for $2.8 billion over a story that suggested the product may cause oral health problems.
Filed on May 18th in a state court in Nashville, where SmileDirectClub is based, the complaint accuses NBC of intentionally misleading its viewers about the company and its products and cited more than 40 allegedly defamatory statements. According to the lawsuit, the company’s value fell by $950 million following the airing of Nguyen’s report on NBC’s “Nightly News with Lester Holt.” . . .
“NBC misled its viewers and readers about the safety of the treatment that patients receive when using SDC’s platform, the involvement of licensed dentists and orthodontists in the treatment of patients when using SDC’s platform, and the benefits that patients receive when they are treated using SDC’s platform,” the complaint reads. . . .
In a statement shared with The Hill, NBC called the claim “meritless” and said it stood by its reporting.
Mass. high court invalidates non-disparagement orders
Writing for The Free Speech Center, David Hudson recently reported:
Non-disparagement orders issued during a divorce proceeding operated as an impermissible prior restraint on speech, the Supreme Judicial Court of Massachusetts has ruled. The court reasoned that there were no “extreme circumstances” that would justify limiting the parties’ disparaging speech about each other. . . .
The Massachusetts high court emphasized that prior restraints on expression are an extraordinary remedy that are constitutional only if there is a compelling need by the government to protect against a serious threat of harm.
The court agreed with the trial judge that the state has a “compelling interest in protecting children from being exposed to disparagement between their parents.” However, to justify a prior restraint on speech, there must be a showing of “extreme circumstances.” . . . .
Sen. Cornyn blocks critics from his official Twitter account — Knight Institute responds
The following is a press release the Knight First Amendment Institute:
The Knight First Amendment Institute at Columbia University today sent a letter to Senator John Cornyn on behalf of a constituent blocked from the Senator’s Twitter account, @JohnCornyn. The letter asks that the Senator immediately stop blocking people from the account based on their viewpoints. Courts have recently held in Knight Institute lawsuits that public officials violate the First Amendment when they block critics from their official social media accounts.
“Senator Cornyn has used his Twitter account to communicate with the public about official government business, including about the government’s response to the COVID-19 pandemic,” said Katie Fallow, Senior Staff Attorney at the Knight Institute. “As multiple courts have held, public officials can’t lawfully block people from their social media accounts simply because they don’t like what they’ve posted. These accounts are public forums, and the First Amendment bars government officials from excluding people from them based solely on viewpoint.”
Headline: 'Nunes family told to amend defamation suit or face dismissal'
This from Rox Laird writing in Courthouse News:
An Iowa federal judge on Tuesday put on hold a defamation suit filed by the family of California Congressman Devin Nunes against Esquire magazine and journalist Ryan Lizza, giving the Republican lawmaker’s family two weeks to file an amended complaint or the case will be dismissed.
U.S. District Judge C.J. Williams, an appointee of President Donald Trump, issued a 20-page ruling that is critical of the original complaint brought by the Nunes family for failure to be specific about precisely how the allegedly defamatory Esquire magazine article was inaccurate. . . .
→ See also "Nunes family’s lawsuit against reporter fails to meet defamation standard, judge rules," First Amendment Watch (May 15)
Abrams & Langford on protesting in COVID-19 times
- Floyd Abrams & John Langford, "The right of the people to protest lockdown," The New York Times (May 19)
Around the nation, state lockdown orders during the coronavirus pandemic have led to sharp debates over the trade-offs inherent in such orders. We have no doubt that states have and should have extremely broad authority to take steps to protect public health during an outbreak that has sickened so many Americans.
But we also have no doubt that some of the restrictions imposed by states are utterly inconsistent with the First Amendment.
- "California protestors sue governor over stay-at-home order," First Amendment Watch (May 7)
Knight Institute publishes 96 Nixon-Era Office of Legal Counsel opinions
This from the Knight First Amendment Institute:
The Knight First Amendment Institute at Columbia University today published 96 Office of Legal Counsel (OLC) opinions it obtained in connection with ongoing litigation under the Freedom of Information Act (FOIA). All of the opinions date from 1974, the last year of the Nixon administration. The Institute sought the records as part of a broader and ongoing effort to vindicate the public’s right of access to the OLC’s formal written opinions, which are treated as controlling law within the executive branch.
“Despite their importance, the majority of the OLC’s legal opinions are secret, which means the public is in the dark about the government’s interpretation of laws relating to national security, war, immigration, civil rights, and more,” said Anna Diakun, Staff Attorney at the Knight Institute. “These memos should be made public as a matter of course, and certainly not withheld for decades. We’re pleased with today’s release and look forward to similar releases of memos from other years.”
New biography of Justice Holmes
- Catharine Pierce Wells, "Oliver Wendell Holmes: A Willing Servant to an Unknown God" (Cambridge University Press, 2020). Boston College Law professor Catharine Pierce Wells has just released a new book on Holmes and his jurisprudence. Wells, who teaches legal theory and has a PhD in philosophy, is no stranger to Holmes and his thought — see, e.g. here, here and here). And here is the abstract of her latest and longest work on Holmes:
Oliver Wendell Holmes was one of the most influential figures in American law. As a Supreme Court Justice, he wrote foundational opinions about such important constitutional issues as freedom of speech and the limits of state regulatory power. As a scholar and Massachusetts High Court judge, he helped to reshape the common law for the modern industrial era. And yet, despite the many accounts of his career, Holmes himself remains an enigma.
This book is the first to explore the nineteenth-century New England influences so crucial to the formation of his character. Inspired by Ralph Waldo Emerson's transcendentalism, Holmes belonged to a group of men who formulated a philosophy known as American pragmatism that stood as an alternative to English empiricism and German rationalism. This innovative study places Holmes within the transcendentalist, pragmatist tradition and thereby unlocks his unique identity and contribution to American law. Wells' nuanced analysis will appeal to legal scholars, historians, philosophers, and general readers alike.
"Wells has courageously added to the immense literature on the life and work of Oliver Wendell Holmes. An expert on the philosophy of American pragmatism, Wells - without ignoring Holmes' legal positivism - successfully reimagines Holmes' life and work in the context of American philosophical pragmatism of his time." —Margaret Jane Radin, University of Toronto
"Professor Wells has written a remarkably thoughtful and compelling book. Part biography and part intellectual history, it shows how Oliver Wendell Holmes was shaped by the social, philosophical, and religious currents of his time. Elegantly written and filled with sparkling insight, it sheds new light on the inner life of one of America's greatest judges." — Thomas Healy, Seton Hall University.
Forthcoming book on hate speech
- "Hate Speech" by Caitlin Ring Carlson (MIT Press, Essential Knowledge series, Feb. 16, 2021)
An investigation of hate speech: legal approaches, current controversies, and suggestions for limiting its spread.
Hate speech can happen anywhere--in Charlottesville, Virginia, where young men in khakis shouted, "Jews will not replace us"; in Myanmar, where the military used Facebook to target the Muslim Rohingya; in Capetown, South Africa, where a pastor called on ISIS to rid South Africa of the homosexual curse." In person or online, people wield language to attack others for their race, national origin, religion, gender, gender identity, sexual orientation, age, disability, or other aspects of identity.
This volume in the MIT Press Essential Knowledge series examines hate speech: what it is, and is not; its history; and efforts to address it.
New scholarly article — 'Bitcoin is speech'
- Justin Wales & Richard J. Ovelmen, "Bitcoin is Speech: Notes Toward Developing the Conceptual Contours of Its Protection Under the First Amendment”, Miami Law Review (2019)
Bitcoin permits users to engage in direct expressive activity with one another without the need for centralized intermediaries. It does so by utilizing an open and community-managed global database called a blockchain. While much of the literature about Bitcoin has focused on its use as a form of digital payment, this Article suggests an expanded understanding by demonstrating its use as a protocol network, not unlike the internet, that can be used to extend the possible range of human expression. After developing an appreciation of the technology, this Article recommends a framework for applying the First Amendment to Bitcoin and similar technologies and explores how the Amendment’s guarantees of associational and expressional freedoms.
Coming this Friday: First of two-part series on Benjamin Bache
Scarcely a day passes but some such scurrility appears in Bache’s paper, very often unnoticed, and of no consequence in the minds of many people, but it has, like vice of every kind, a tendency to corrupt the morals of common people. — Abigail Adams, 12 December 1797
First Amendment Watch:
This coming Friday First Amendment Watch will post the first of a two-part series on Benjamin Franklin Bache, the revolutionary-era Anti-Federalist printer. Bache was the publisher of the Philadelphia Aurora, a newspaper that took robust aim at the Federalists powers-that-be.
Ronald Collins tells the story of Benjamin Bache, grandson of Ben Franklin and a fierce critic of Washington and Adams whose life was cut short by yellow fever. Bache and his newspaper, the Aurora, were central actors in the intense political polarization of the day. While Jefferson saw Bache's Aurora as a kind of "watchful sentinel," crucial for constitutional government in America, Abigail Adams believed the newspaper "corrupted the morals of common people." For those who cannot imagine a time less favorable to a free press than the present moment, Collins' essays serve as useful reminders that some of the biggest threats to the First Amendment took place in the first decade following ratification.
Among other things, Bache (known as "lightning rod junior" after his famous grandfather's experiment) won the animus of the Federalists when he suggested that President Washington had secretly worked with British during the Revolution. Bache’s tirades against the Administration and Federalist lawmakers also made him a persona non gratis in Congress. Predictably, once the Alien and Sedition Acts found their way onto the pages of the national law, Bache was soon enough arrested. The rest is in "Benjamin Bache & the Fight for Freedom of the Press: Parts I & II"
The two-part series will have a foreword by Professor Stephen Solomon, author of "Revolutionary Dissent: How the Founding Generation Created the Freedom of Speech" (2016).
Clear and Present Danger Podcast: The internet in pandemic times
“Internet Speech Will Never Go Back to Normal”, wrote Jack Goldsmith and Andrew Keane Woods in a recent Atlantic article, where they stated that the U.S. must learn from China in regulating the internet, and that “significant monitoring and speech control are inevitable components of a mature and flourishing internet, and governments must play a large role in these practices to ensure that the internet is compatible with a society’s norms and values.”
But is this conclusion the only one available from the fallout of the coronavirus crisis? Or are there other ways to ensure a mature and flourishing internet, where free speech and public health go hand in hand? Here to discuss the issue is two of the biggest experts on the subject on internet law and platform regulation: Daphne Keller and Kate Klonick.
In this episode we discuss:
- whether social media platforms like Facebook, Twitter and YouTube been paragons of responsibility or the lapdogs of censorious governments when it comes to content moderation?
- if the current crisis justifies lowering the threshold for when content is deemed “harmful” or should we be even more vigilant about keeping stuff up and accessible?
- are there specific problems in the policy of following the guidelines of health authorities like WHO and CDC which have changed on issues like facemasks and included inaccurate information about the nature of COVID-19?
- what is the impact and promise of automated content moderation based on the performance during the pandemic
- whether democracies – particularly European ones – have weakened the immune system of online freedom because they have chosen to respond to legitimate concerns about hate speech, disinformation and terrorist content with illiberal laws?
- Eugene Volokh, "Page restrictions on court filings don't violate free speech," The Volokh Conspiracy (May 19)
- Alex Morey, "Columbia cannot punish professor who told CUNY student to ‘drop dead’ on social media," FIRE (May 18)
- Sarah McLaughlin, "Groups put renewed focus on suppression of speech critical of China on American and Canadian campuses," FIRE (May 18)
- Deborah Fisher, "Memphis journalist files First Amendment lawsuit after removal from city's media advisory list," The Free Speech Center (May 15)
- David L. Hudson, Jr., "Nude-dancing clubs can’t be excluded from Covid-19 relief for small businesses, rules federal judge," The Free Speech Center (May 12)
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]
- Bright v. Thomas
- Kansas v. Boettger
- 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
- 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”)
- Dyroff v. Ultimate Software Group Inc. (interpretation of Section 230(c)(1))
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