From protecting depictions of animal cruelty to hurting public sector unions to promoting anti-abortion speech over pro-choice speech to overruling the efforts of politicians to rid elections of corporate and other types of spending, the Roberts Court, with the Chief out front, has turned the first amendment into a weapon for the Republican party and other conservative interests. And in case after case after case the conservatives, including Scalia and Thomas, did so with nary a word of originalist support.
This first amendment fanaticism is wrong as a matter of law, wrong as a matter a of public policy, wrong as a matter of politics, and wrong as wrong can be as a matter of originalism.
Table of Contents
First Amendment News 294: Nicole Ligon on 'Protecting Local News Outlets from Fatal Legal Expenses'
As highlighted in a recent First Amendment News post, we seem to be witnessing a newfound resurgence in defamation actions, including suits against media outlets. In light of that, I was pleased to discover a recent and thoughtful article in the New York University Law Review, an article by Nicole Ligon, Supervising Attorney and Lecturing Fellow of the First Amendment Clinic at the Duke University School of Law. At a time when so much legal scholarship is either of the case-crunching or meta-theory variety, it is a welcome surprise to read something with real-world implications. Here is an abstract of Ms. Ligon's article:
As lawsuits targeting the press continue to rise in response to today’s political climate, local news outlets are more likely to find themselves facing unexpected legal expenses. Although the national news media can generally weather the costs of libel lawsuits and subpoena requests, smaller news outlets have gone bankrupt or barely escaped such a fate while paying off legal fees, even when these outlets have ultimately been successful in their legal battles. Because local news outlets serve a critical role in underserved communities and are powerful agents of positive social change, they ought to be protected against fatal legal expenses.
This Article examines the important functions of local journalism, explains the recent legal challenges that local news outlets have been facing and their resulting impact, and exposes the problematic gaps of statutory frameworks that fail to adequately protect local news outlets from fatal legal expenses.
In so doing, this Article argues that enacting strong state anti-SLAPP statutes and reporter’s shield laws is necessary to combat recent costly attacks against the press and to preserve the vitality of the local media.
In the article itself, Ms. Ligon adds:
In light of recent litigation targeting the press, strong press protections are needed to ensure that local news outlets can continue to thrive and engage in meaningful reporting. In Part I, this Article will explore the role of local media in society today. Finding local news outlets to be particularly valuable to the journalism landscape and to the public, Part II will identify two areas of legal regulation that need to be strengthened to protect local news’s vital- ity: anti-SLAPP laws and shield laws. This Article will explain the short- comings of these regulations as they relate to protecting local journalists with the aim of promoting potential legal reform in these areas.
- "State Anti-SLAPP Laws," Public Participation Project
- Iris Samuels, "Mont. House rejects bill calling news media 'slander machines'," Associated Press (April 12)
- Tom Coulter, "Shield law proposal rejected by Senate committee," Wyoming Tribune Eagle (March 19)
Thomas's concurrence in social platforms case prompts range of comments
- Marguerite Reardon, "A Supreme Court Justice weighs in on Section 230: Here's what it means," CNET (April 12)
- Joel Thayer, "Did Clarence Thomas just open the door to holding tech platforms accountable for disinformation?," Washington Examiner (April 12)
- GianCarlo Canaparo, "Justice Thomas’ Thought Experiment on Novel Issues With Social Media, Free Speech," The Daily Signal (April 8)
- Jameel Jaffer & Katie Fallow, "Official Censorship Should Have No Place in the Digital Public Square," The New York Times (April 7)
- Eugene Volokh, “Justice Thomas Suggests Rethinking Legal Status of Digital Platforms,” The Volokh Conspiracy (April 5)
- Bobby Allyn, "Justice Clarence Thomas Takes Aim At Tech And Its Power 'To Cut Off Speech'," NPR (April 5)
- Devin Coldewey, "Clarence Thomas plays a poor devil’s advocate in floating First Amendment limits for tech companies," TechCrunch (April 5)
- Mark Joseph Stern, "Clarence Thomas’ Attack on Social Media Companies Is a Paranoid Marxist Delusion," Slate (April 5)
- "Constituents Sue Texas Attorney General For Blocking Them on Twitter," First Amendment Watch (April 9)
NYT: "Smartmatic says disinformation on Fox News about the election was ‘no accident’"
This from a New York Times article by Jonah E. Bromwich:
The election technology company Smartmatic pushed back on Monday against Fox News’s argument that it had covered the aftermath of the 2020 presidential election responsibly, stating that Fox anchors had played along as guests pushed election-related conspiracy theories.
“The First Amendment does not provide the Fox defendants a get-out-of-jail-free card,” Smartmatic’s lawyer, J. Erik Connolly, wrote in a [120-page] brief filed in New York State Supreme Court. “The Fox defendants do not get a do-over with their reporting now that they have been sued.”
The brief came in response to motions filed by Fox Corporation and three current and former Fox hosts — Maria Bartiromo, Jeanine Pirro and Lou Dobbs — to dismiss a Smartmatic lawsuit accusing them of defamation. . . .
Fox will have several weeks to respond to the brief, and a judge will eventually consider whether to allow Smartmatic’s case to proceed.
Florida Gov. DeSantis locks horns with YouTube
- Terry Spencer, "DeSantis attacks YouTube for yanking his pandemic video," Associated Press (April 13)
Florida Gov. Ron DeSantis attacked YouTube and its parent company Google on April 12, accusing the tech giant of censorship for its decision last week to remove from its platform video of a coronavirus discussion he organized where his panel criticized lockdowns and some mask wearing as ineffective.
DeSantis said YouTube's contention that video of the March 18 panel violates its ban on the posting of disinformation is an attempt to stifle dissent against the federal government's pandemic response. That discussion included Dr. Scott Atlas, a radiologist who was a coronavirus adviser to former President Donald Trump, and other physicians who support DeSantis' decision to open Florida's economy with few restrictions.
The attack is part of a bigger war DeSantis and other Republicans are waging against social media giants, including Facebook and Twitter, contending they discriminate against conservatives.
Upcoming: First Amendment Watch to host Zoom public forum
The 19th-century political philosopher John Stuart Mill warned that the greatest threat to free expression was not the government but the tyranny of the majority. Mill thought a society’s beliefs about what sort of opinions should be tolerated could have a greater impact on individual liberty than state or national law. Bearing this and our globalized world in mind, how do private universities and companies, who aren’t limited by the First Amendment, respond to public pressure for censorship or open debate? How do today’s universities and companies who have campuses and relationships in other countries navigate conflicting public opinions on matters of free expression?
Join us on April 21st at 12:00pm EST for our next #FAWPublicForum “It’s a Matter of (Public) Opinion,” where we will discuss controversies that highlight conflicting cultural attitudes about the bounds of free speech. Our special guests include Sarah McLaughlin, a writer and free speech advocate who currently serves as the Director of Foundation for Individual Rights’ (FIRE) Education Targeted Advocacy program, and Danish lawyer and human-rights activist, Jacob Mchangama, the founder and executive director of Justitia, a Danish think tank that promotes policies in favor of free expression. McLaughlin recently released a Substack, where she has written about blasphemy laws, social media regulation, and political activism in sports.
Mchangama is the author of an upcoming book “Free Speech: A History From Socrates to Social Media” [Basic Books, Jan. 2022], which looks at how concepts like tolerance and intellectual diversity evolved over 2,000 years. The book is based on his podcast “Clear and Present Danger: A History of Free Speech.”
→ Register here.
- Jacob Mchangama, "How to Judge Facebook’s New Judges," Foreign Policy (Dec. 4, 2020)
Upcoming: Reynolds School of Journalism to host 'Free Speech & Firearms' Zoom event
From Univesity of Nevada, Reno's Nevada Today:
Americans cherish their rights to speak out and to bear arms. Speech and guns increasingly cross paths, such as when political protesters carry guns. Do First and Second Amendment rights complement each other, or do they cause a constitutional conflict that poses a threat to dialogue and democracy?
The 2021 Reynolds School of Journalism First Amendment Forum features Professor Gregory P. Magarian, whose scholarship on free expression and firearms regulation can help us understand the legal doctrine and theory behind this fraught relationship. Magarian is Thomas and Karole Green Professor of Law at the Washington University School of Law in St. Louis. His first book, Managed Speech: The Roberts Court’s First Amendment, was published in 2017 by
Oxford University Press. Magarian received his B.A. from Yale and his J.D. and a master’s degree in public policy from the University of Michigan. He served as a law clerk for Justice John Paul Stevens of the U.S. Supreme Court and practiced law at Jenner and Block in Washington, D.C.
The event will feature an introduction from Reynolds School Assistant Professor of Media Law Patrick File and a discussion and audience Q&A moderated by Associate Professor of Communication Studies Amy Pason. This free public event is sponsored by the Reynolds School of Journalism and by Warren and Janet Lerude.
Attendees will receive a link to the Zoom webinar upon completing registration. The event will also be shared via Facebook Live. If you require a reasonable accommodation, please email Jessica Fagundes (email@example.com) by April 13.
Date & Time
- Tuesday, April 20, 2021 / 7:30 PM – 8:30 PM EDT
- Register here.
Headline: 'National Archives can’t resurrect Trump’s tweets'
- Quint Forgey, "National Archives can’t resurrect Trump’s tweets, Twitter says," Politico (April 7)
Twitter will not allow the National Archives to make former President Donald Trump’s past tweets from his @realDonaldTrump account available on the social media platform, the company told POLITICO on Wednesday, in the latest display of Silicon Valley’s power over communications channels used by the U.S. government.
The statement came as the National Archives and Records Administration has been working to create an official online archive of Trump’s tweets as president, including those that prompted Twitter to permanently suspend him earlier this year as a threat to public safety. NARA already maintains archives for the institutional and personal accounts of many other former Trump administration officials, in which the old tweets live on the Twitter platform and users can retweet, like and otherwise interact with them.
- Michael Knowles, "Speechless: Controlling Words, Controlling Minds" (Regnery Publishing, June 22, 2021)
- Andrew Doyle, "Free Speech: Why It Matters" (Constable, November 2, 2021) (author video interview here.)
New scholarly article on Espionage Act prosecutions for leaking to the press
- Heidi Kitrosser & David Schulz, "A House Built on Sand: The Constitutional Infirmity of Espionage Act Prosecutions for Leaking to the Press," First Amendment Law Review (forthcoming 2021)
Since 9/11 our government has embarked on an unprecedented surge in leak investigations and Espionage Act prosecutions for the disclosure of classified information to the American press—punishing disclosures about mass surveillance of U.S. citizens, Russian interference in the U.S. election, FBI targeting of Muslim groups, and other issues of legitimate public concern. These prosecutions are designed to squelch the flow of classified information to the public, and they do. Free speech doctrine teaches that criminal prosecutions of those who leak information of public concern to the press warrant searching judicial review. Courts nonetheless routinely brush aside free speech concerns in Espionage Act leak cases, essentially applying a broad national security exception to the First Amendment that extends deep deference to executive branch judgments about the needs of national security, ignores the realities of a bloated classification system that often conceals mismanagement, waste and misconduct, and undertakes virtually no assessment of the First Amendment interests at stake.
This paper presents for the first time an in-depth-analysis of the shaky precedential edifice upon which rests today’s use of the Espionage Act to target those who leak to the press. It demonstrates that for decades after its passage in 1917, the Espionage Act was used to pursue only classic acts of espionage. Indeed, the notion that the Act might be weaponized against media leaks was virtually unthinkable in 1917, as was the modern classification system itself. Given these factors, as well as the absence of a well-developed First Amendment jurisprudence throughout the first half of the 20th century, courts readily dismissed First Amendment challenges to early Espionage Act spying prosecutions.
When the government much later began to use the Act to prosecute leaks to the press, courts cloaked their intuitions about national security exceptionalism in the vestments of these inapt early precedents. In so doing, courts sidestepped the substantial constitutional concerns presented by media leak prosecutions. This approach is epitomized by the Fourth Circuit’s 1988 ruling in United States v. Morison, the first – and still the only -- appellate court opinion to address the First Amendment limits to an Espionage Act prosecution for leaking to the press. District courts routinely cite to Morison, echoing its reasoning and the inapposite precedent on which it relied.
This paper lays bare the fundamental failure of the courts to address serious First Amendment concerns presented by such Espionage Act prosecutions, and the urgent need for them to do so. It reviews the legislative, prosecutorial and judicial history of the Espionage Act, and explores some of the key forces that propelled its evolution into the Justice Department’s tool of choice to enforce broad executive declarations of secrecy. It then demonstrates through a careful case-by-case dissection, the absence of any solid precedential foundation establishing that the Espionage Act can constitutionally be used to criminalize leaks to the press, and finally provides a brief overview of steps that could be taken to safeguard the important First Amendment concerns presented in such prosecutions.
Volokh on 'Criminal Impersonation and Criminal Libel'
This from Eugene Volokh over at The Volokh Conspiracy:
Most states no longer have criminal libel laws, which generally punish knowing lies that damage people's reputations. But some have created criminal impersonation statutes, which (among other things) punish a particular kind of libel: one accomplished by pretending to be a person, and then saying offensive things in that role, which damages the person's reputation.
The New York Rafael Golb / Dead Sea Scrolls case offers one example of how the criminal impersonation statute can be applied. And I just came across another, in California, which just led to a man to be "sentenced to serve 180 days in jail [suspended, provided he not reoffend for the next year], placed on probation for one year, and ordered to pay victim restitution." Here's the People's Version of the Facts from the prosecution's sentencing brief:
On June 28, 2020 Carmen Gonce. . . entered the Sandbox Coffee wearing a mask and complained because the cashier was unmasked. The cashier, Cebriana Habicht, was a trainee and the daughter of Gina Bacon. . . . Habicht told the customer she should do her homework. Gonce started filming Habicht and Habicht photographed Gonce.
When Gonce left, Habicht photographed Gonce's car and got her name off of the receipt because Gonce used a credit card. Habicht told Bacon what occurred and provided Bacon her video. Bacon then allegedly posted the photos and Gone's name on Bacon's group's Facebook page This kicked off an Internet campaign for and against Gonce/Habicht and Sandbox Coffeehouse (where Habicht only worked for one day.) Sandbox Coffeehouse suffered lost business, reputation and vandalism.
Starting on or about July 13, 2020, the defendant Edgar Castrejon began impersonating Gina Bacon, Yoshi Arelas and the We Have Rights Corporation, organizers of the Open Ventura County protests. Bacon was an organizer of the large but peaceful protest at the Ventura Government Center.
Castrejon copied Bacon's real Facebook (FB) page in order to make a fraudulent account in her name. The defendant used his fake Bacon account to make fraudulent virulently racist posts and to claim Bacon's group were bringing guns to a protest at Dr. Levin's house. Dr. Levin is the Ventura County Public Health Officer. He then posted a screen shot of those fraudulent posts in many FB community forums for approx.. two weeks and they went viral. . . .
I'd love to hear what our readers think about this. Are these criminal statutes a good idea? If you think "purposes of harming" or "intimidating" are too broad, would they be a good idea if limited to credible impersonation intended to damage reputation (or to threaten or to defraud)?
Segall on 'The Roberts Court & First Amendment Fanaticism'
- Eric Segall, "The Roberts Court, First Amendment Fanaticism, and the Myth of Originalism," Dorf on Law (April 12).
After presenting his case, Professor Segall concluded:
- Alex Swoyer, "Smartmatic: Fox News isn't protected by First Amendment in defamation lawsuit," Washington Times (April 13)
- Robert Shibley, "University of Oklahoma defends diversity training requiring agreement with university-approved viewpoints but signals willingness to reconsider," FIRE (April 12)
- Steven D. Schwinn, "Seventh Circuit Says Governor Can Limit Media Access to Press Conferences," Constitutional Law Prof Blog (April 12)
- "Conservative Think Tank Loses Press Access Lawsuit Against Wisconsin Governor," First Amendment Watch (April 12)
- "Police arrest so-called ‘1st Amendment Auditor’ accused of threatening to shoot officers," KWTX TV (April 12)
- Kimberly Wehle, "Protect the police or the First Amendment?," The Hill (April 12)
- Jessica Levinson, "How Infowars host Alex Jones pushed the First Amendment to its limit," MSNBC (April 11)
- Bill Hetherman, "Judge dismisses ex-Rep. Katie Hill’s nude photo claim against Daily Mail, citing First Amendment," Los Angeles Daily News (April 7)
- Jeremy Lewin, "The Progressive Case for Libel Reform," The Wall Street Journal (April 5)
- Sophia Cope & Adam Schwartz, "First Circuit Upholds First Amendment Right to Secretly Audio Record the Police," EFF (April 5)
- Thomas A. Berry & Stacy Hanson, "Public Schools Can’t Control Students’ Private Speech," Cato Institute (March 29)
2020-2021 SCOTUS term: Free expression & related cases
- Mckesson v. Doe (per curium, 7-1 with Thomas, J., dissenting) (judgment vacated and remanded to 5th Cir.)
- Facebook, Inc. v. Duguid (OA: Dec. 8, 2020) (Telephone Consumer Protection Act robocall case — decided on statutory grounds)
- Facebook, Inc. v. Duguid (OA: Dec. 8, 2020) (Telephone Consumer Protection Act robocall case)
- Fulton v. City of Philadelphia (OA: Nov. 4, 2020) (religious expression: free exercise & free speech claims)
- Carney v. Adams (OA: Oct. 5, 2020) (standing/judicial elections)
- Mahanoy Area School District v. B.L.
- Thomas More Law Center v. Becerra
- Americans for Prosperity Foundation v. Becerra
- Boardman v. Inslee
- Thompson v. Marietta Education Association
- Hamilton v. Speight
- City of Austin, Texas v. Reagan National Advertising of Texas Inc.
- Houston Community College System v. Wilson
- Thompson v. DeWine
- Corn et al v. Mississippi Dept. of Public Safety (5th Cir. opinion)
- Stockman v. United States
- Institute for Free Speech v. Becerra
- Arlene’s Flowers Inc. v. Washington
- Trump v. Knight First Amendment Institute
- Jack Daniel’s Properties Inc. v. VIP Products LLC
- Hurchalla v. Lake Point Phase
- Bruni v. City of Pittsburgh
- Hunt v. Board of Regents of the University of New Mexico
- Lieu v. Federal Election Commission
- City of Sacramento, California v. Mann
- Evans v. Sandy City, Utah
- Reisman v. Associated Faculties of the University of Maine
- Austin v. Illinois
- Living Essentials, LLC v. Washington
- Rentberry, Inc. v. City of Seattle (cert. denied)
- Uzuegbunam & Bradford v. Preczewski, et al. (nominal damages and mootness in campus speech context) (cert. granted: 8-1 held Art. III claim not moot)
- National Association of Broadcasters v. Prometheus Radio Project (Re: Section 202(h) of the Telecommunications Act of 1996) (cert. granted & case argued)
- Federal Communications Commission v. Prometheus Radio Project (Re: FCC cross-ownership restrictions) (cert. granted & case argued)
- Retzlaff v. Van Dyke (state anti-SLAPP laws in federal diversity cases) (cert. denied)
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