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First Amendment News 264: On John Roberts and free speech — a preliminary look
“I would never underestimate his ability to influence people.”
– Joan Biskupic
So spoke the writer and legal analyst Joan Biskupic about Supreme Court Chief Justice John Roberts. And correctly so. Among other places, this is apparent in Roberts's First Amendment free expression jurisprudence.
There is a certain resolve, at once philosophical and tactical, that is at work here. In 95% of the free expression cases decided during his tenure, Roberts has been in the majority. Equally revealing, Roberts has assigned the lead opinion to himself almost 29% of the time. In other words, there is — for him — something special about this genre of cases, something that speaks to a grander vision of who Roberts is and what he hopes the court bearing his name might be remembered for.
These and related points are discussed in a recent piece I co-authored with David L. Hudson, Jr., which appeared yesterday in SCOTUSblog. That article is a part of a larger report we co-authored titled “The Roberts Court: Its First Amendment Free Expression Jurisprudence — 2005-2020.” The report will soon be released by FIRE.
Meanwhile, below is a list of First Amendment free expression majority opinions authored by John Roberts:
- Rumsfeld v. Forum for Academic & Institutional Rights (2006)
- E..C. v. Wisconsin Right to Life, Inc. (2007)
- Morse v. Frederick (2007)
- Ysursa v. Pocatello Education Association (2009)
- United States v. Stevens (2010)
- Holder v. Humanitarian Law Project (2010)
- Doe v. Reed (2010)
- Snyder v. Phelps (2011)
- Free ENT. Club’s Freedom Club PAC v. Bennett (2011)
- Agency for International Development v. Alliance for Open Society International, Inc.
- McCullen v. Coakley (2014)
- Williams–Yulee v. The Florida Bar (2015)
- Expressions Hair Design v. Schneiderman (2017)
- Minnesota Voters Alliance v. Mansky (2018)
- Nieves v. Bartlett (2019)
Much more will be said about these opinions, which constitute a part of the 56 First Amendment free expression opinions handed down by the Roberts Court through this last term.
News organizations object to gag order in George Floyd case
This from The Free Speech Center at Middle Tennessee State University (via the Associated Press):
A coalition of news organizations asked a Minnesota judge on July 17 to scale back the gag order he imposed in the case of four former Minneapolis police officers who are charged in the death of George Floyd.
The July 9 gag order is overly broad and restricts a "staggering number" of individuals not directly involved in the case — not just defense layers and prosecutors — attorneys for the Media Coalition said in filings in Hennepin County District Court. And it was imposed without the opportunity for comment, they said. . . .
Defense attorneys have also objected to the gag order, in which Judge Peter Cahill said continuing pretrial publicity would increase the risk of tainting the potential jury pool and "will impair all parties' right to a fair trial."
Cahill will hold a hearing on July 21 on the gag order and requests by the coalition and defense attorneys to release and allow publication of the body camera videos of two of the ex-officers. . .
- Deborah Fisher, "TN Supreme Court: We have not approved ‘outright ban’ on public access in state’s courts," The Free Speech Center (July 19)
Liberty University sues The New York Times for defamation over COVID-19 story
This from First Amendment Watch:
A prominent Christian university based in Virginia is suing The New York Times and one of its reporters for an article about the university president’s decision to reopen the college during the beginning of the COVID-19 outbreak.
Filed in the Circuit Court for the City of Lynchburg, where the university is located, the lawsuit claims that the newspaper incorrectly stated that about a dozen students living on campus exhibited COVID-19-like symptoms, and that one student tested positive for coronavirus in late March.
“There was never an on-campus student diagnosed with COVID-19,” the complaint says.
Though the story was later corrected to show that the student who tested positive was living off-campus, Liberty University’s lawyers claim Elizabeth Williamson intentionally misrepresented the information to portray the school and its President as “backward, irresponsible, anti-science, responsible for getting people sick in a pandemic, and closely tied to and mirroring President Trump.”
Volokh on when plaintiffs and defendants can sue pseudonymously
- Eugene Volokh, "#MeToo, #TheyLied, and Pseudonymous Litigation," The Volokh Conspiracy (July 21)
When can libel plaintiffs, suing over allegedly false claims of sexual misconduct, sue pseudonymously? When can defendants defend pseudonymously?
Recent years have seen a surge of high-profile sexual harassment and sexual assault lawsuits (though there were plenty before as well). They have also seen a surge of
- libel lawsuits by people (mostly men) who say they were falsely accused of sexual abuse, and who sued their accusers (mostly women);
- libel lawsuits by the accusers who say they were falsely accused of lying (e.g., the libel lawsuits against Bill Cosby); and
- due process and Title IX lawsuits by students who say they were wrongly disciplined by colleges in sexual misconduct investigations.
Many plaintiffs and defendants in these lawsuits want to proceed pseudonymously, to shield their identities from the public (though of course not from each other). But whether they can do so turns out to be complicated and unsettled.
Tomorrow: Webinar on press rights and digital safety during pandemic and protest
On Thursday, the Technology and Press Freedom Project’s Linda Moon will join Digital Strategist Tim Schwartz, author of “A Public Service: Whistleblowing, Disclosure, and Anonymity,” for a webinar dedicated to unpacking the rights of journalists and content producers during times of pandemic and protest. The webinar, hosted by Alley, a digital consulting firm, will explore strategies to help journalists safely document protests and police brutality and work with sources securely and remotely.
→ Thursday, July 23, 2020 12:00 PM ET
→ Register here.
Forthcoming book by Jonathan Rauch
- Jonathan Rauch, "The Constitution of Knowledge" (The Brookings Institute, June 2021)
Disinformation. Trolling. Conspiracies. Social media pile-ons. Campus intolerance. On the surface, these recent additions to our daily vocabulary appear to have little in common. But together, they are driving an epistemic crisis: a multi-front challenge to Americas ability to distinguish fact from fiction and elevate truth above falsehood.
In 2016 Russian trolls and bots nearly drowned the truth in a flood of fake news and conspiracy theories, and Donald Trump and his troll armies continued to do the same. Social media companies struggled to keep up with a flood of falsehoods, and too often didnt even seem to try. Experts and some public officials began wondering if society was losing its grip on truth itself. Meanwhile, another new phenomenon appeared: “cancel culture.” At the push of a button, those armed with a cellphone could gang up by the thousands on anyone who ran afoul of their sanctimony.
In this pathbreaking book, Jonathan Rauch reaches back to the parallel eighteenth-century developments of liberal democracy and science to explain what he calls the “Constitution of Knowledge”—our social system for turning disagreement into truth.
By explicating the Constitution of Knowledge and probing the war on reality, Rauch arms defenders of truth with a clearer understanding of what they must protect, why they must do so—and how they can do it. His book is a sweeping and readable description of how every American can help defend objective truth and free inquiry from threats as far away as Russia and as close as the cellphone.
Forthcoming book on surveillance and free speech
- Jillian York, "Silicon Values: The Future of Free Speech Under Surveillance Capitalism" (Verso, March 2021)
What is the impact of surveillance capitalism on our right to free speech? The Internet once promised to be a place of extraordinary freedom beyond the control of money or politics, but today corporations and platforms exercise more control over our ability to access information and share knowledge to a greater extent than any state. From the online calls to arms in the thick of the Arab Spring to the contemporary front line of misinformation, Jillian York charts the war over our digital rights. She looks at both how the big corporations have become unaccountable censors, and the devastating impact it has had on those who have been censored.
In Silicon Values, leading campaigner Jillian York, looks at how our rights have become increasingly undermined by the major corporations desire to harvest our personal data and turn it into profit. She also looks at how governments have used the same technology to monitor citizens and threatened our ability to communicate. As a result our daily lives, and private thoughts, are being policed in an unprecedented manner. Who decides the difference between political debate and hate speech? How does this impact on our identity, our ability to create communities and to protest? Who regulates the censors? In response to this threat to our democracy, York proposes a user-powered movement against the platforms that demands change and a new form of ownership over our own data.
Recent scholarly article on the Roberts Court & free speech
- Stephen M. Feldman, "Free-Speech Formalism and Social Injustice," William & Mary Law Review (2019)
The Roberts Court has shifted constitutional law in a formalist direction. This Essay explains the Court’s formalism and its causes and consequences in First Amendment free-expression cases. The thesis is that the current conservative justices’ reliance on formalism intertwines with their attitudes toward public and private spheres of activity. Their attitudes toward the public-private dichotomy are, in turn, shaped by their political ideologies as well as by the contem- porary practices of democratic government, which have shifted significantly over American history. Formalism contains an inherent political tilt favoring those who already wield power in the private sphere. Formalism favors the wealthy over the poor, whites over peo- ple of color, men over women, straights over LGBTQ. In a formalist legal regime, the government must efface, deny, or ignore all of the structures of power embedded in the private sphere, including racism, sexism, antisemitism, and homophobia. Thus, formalism matters, but does not determine outcomes in free-speech cases.
Ultimately, what animates most of the Court’s free-expression decisions, whether formalist or not, is a conservative (neoliberal) commitment to protecting the private sphere, especially the economic marketplace and wealthy economic actors, while simultaneously denigrating and weakening government.
Recent scholarly article: Revisiting Miller v. California and more
Lisa Crooms-Robinson, "Stripped: Speech, Sex, Race, and Secondary Effects," William & Mary Law Review (2019)
So to Speak podcast with PEN America CEO Suzanne Nossel
In this episode of So to Speak, we are joined by PEN America CEO Suzanne Nossel to discuss campus censorship, cancel culture, how different generations think about free speech, the attacks on Charlie Hebdo in 2015, and more.
Nossel is the author of the forthcoming book, “Dare to Speak: Defending Free Speech for All.”
FIRE announces virtual summer series: Four days of First Amendment festivities
This from FIRE:
FIRE’s President and CEO, Greg Lukianoff, will kick off the series by leading a discussion about “The Sudden Victory of Freedom FROM Speech & What We Can Do About It.” Attendees from across the country will engage with each other and this year’s FIRE Summer Interns as we discuss the state of free speech in America, share stories, and play First Amendment Jeopardy. Personally, I’m looking forward to FIRE’s movie night, where attendees will watch a documentary about the collision between comedy and outrage culture. After the movie screening of “Can We Take a Joke?”, attendees will interact with the film’s director during a live Q&A. And to add to the festivities, student attendees will even be eligible for prizes. So the more events you attend, the bigger the reward!
For those interested in becoming First Amendment advocates on their college campuses, applying for FIRE’s 2021 Summer Internship Program, or just meeting peers from across America, FIRE’s week of virtual festivities will be a great way to evade summer boredom and engage with new people — all from the comfort of your home! So grab your favorite drink, find a comfy spot, and join us at FIRE’s first Virtual Summer Series. We hope to see you there!
Virtual Summer Series Schedule
Monday, July 27 – 3–4 p.m. ET – The Sudden Victory of Freedom FROM Speech & What We Can Do About It
Greg Lukianoff, FIRE President and CEO
Join us on Zoom:
Tuesday, July 28 – 6–6:45 p.m. ET – Trial By FIRE: Get to know your fellow First Amendment activists!
Hosted by FIRE’s Undergraduate Interns
Join us on Zoom:
Wednesday, July 29 – 7–8:30 p.m. ET – Movie Screening: “Can We Take a Joke?” and Q&A with film director Ted Balaker
Join us on Zoom:
Thursday, July 30 – 6–6:45 p.m. ET – First Amendment Jeopardy!
Hosted by FIRE’s Summer Interns
Join us on Zoom:
- Dmitri Solzhenitsyn, "The State of Free Speech on College Campuses Is Dreadful," National Review (July 21)
- Alex Horton, "Army ban on war crime comments during Twitch stream may have violated First Amendment, lawyers say," Washington Post (July 20)
- Alex Morey, "Update: Wayne Law says it will not report students for bar exam advocacy," FIRE (July 20)
- Anthony L. Fisher, "The leftist case for free speech as a tool for justice," Business Insider (July 18)
- "Attacks on the Press Reporter Sues City of Belmar, New Jersey for Free Speech and Free Press Violations," First Amendment Watch (July 17)
- "Fordham student punished for holding gun in Instagram photo memorializing Tiananmen Square massacre," FIRE (July 17)
- David L. Hudson, Jr., "Juvenile’s texts were not true threats, rules Wash. state appeals court," The Free Speech Center (July 16)
YouTube: 'Social Media's Impact on Free Speech'
Description from the July 16 webinar:
National Review Institute and the Lincoln Network co-sponsored a webinar with Kevin D. Williamson and Marshall Kosloff on how conservatives and libertarians should approach debates about free speech and the power of social media platforms online.
2019–2020 SCOTUS term: free expression & related cases
Opinions or judgments handed down
- Barr v. American Association of Political Consultants, Inc. (argued May 6) (automated-call restriction)
- United States Agency for International Development v. Alliance for Open Society International Inc.
- Thompson v. Hebdon (per curiam with Ginsburg, J., statement concurring in remand)
- United States v. Sineneng-Smith (decided on non-First Amendment grounds)
- Chiafalo v. Washington (consolidated w/ Colorado Department of State v. Baca) (argued May 13) (First Amendment claim raised but case decided on non-1A grounds.)
- Facebook, Inc. v. Duguid
- Carney v. Adams (TBD) (standing/judicial elections)
- United States Agency for International Development v. Alliance for Open Society International Inc.(argued May 5) (federal funding/compelled speech)
- Barr v. American Association of Political Consultants, Inc. (argued May 6) (automated-call restriction)
- Fulton v. City of Philadelphia (TBD) (religious expression: free exercise & free speech claims)
- Hunt v. Board of Regents of the University of New Mexico
- Living Essentials, LLC v. Washington
- Evans v. Sandy City, Utah
- Bruni v. City of Pittsburgh
- Austin v. Illinois
- Mckesson v. Doe
- Reisman v. Associated Faculties of the University of Maine
- Institute for Free Speech v. Becerra
- Americans for Prosperity Foundation v. Becerra
- Thomas More Law Center v. Becerra
- Arlene’s Flowers Inc. v. Washington
- Charter Communications, Inc. v. Gallion
- Bright v. Thomas
- Price v. City of Chicago, Illinois
- Kansas v. Boettger (Thomas, J., dissenting from denial of cert.)
- Waggy v. United States
- Jarchow v. State Bar of Wisconsin
- National Association for Gun Rights, Inc. v. Mangan
- Schmitt v. LaRose
- Vugo Inc. v. City of New York, New York
- Waronker v. Hempstead Union School District
- 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
- Uzuegbunam & Bradford v. Preczewski, et al (nominal damages and mootness in campus speech context) (cert. granted)
- National Association of Broadcasters v. Prometheus Radio Project (re Section 202(h) of the Telecommunications Act of 1996)
- Federal Communications Commission v. Prometheus Radio Project (re FCC cross-ownership restrictions)
First Amendment related: cert. denied
- Force v. Facebook Inc. (interpretation of Section 230(c)(1))
- Olivas-Motta v. Barr (void for vagueness, “moral turpitude”)
- Dyroff v. Ultimate Software Group Inc. (interpretation of Section 230(c)(1))
Last scheduled FAN
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