“A generation ago, the court actively taught the public that the press was a check on government, a trustworthy source of accurate coverage, an entity to be specially protected from regulation and an institution with specific constitutional freedoms.” — Professor RonNell Andersen Jones, University of Utah S.J. Quinney College Of Law
"Today, in contrast, it almost never speaks of the press, press freedom or press functions, and when it does, it is in an overwhelmingly less positive manner.” — Professor Sonja R. West, University of Georgia School of Law
Those are the conclusions of professors Jones and West as set out in a forthcoming North Carolina Law Review article titled "The U.S. Supreme Court's Characterizations of the Press: An Empirical Study."
The Trump era turned everyone’s focus to the dangers of vilification of the press by the political branches, but no attention at all has been paid to the changing ways that the Court speaks of the press—which we found remarkable, in light of the Court’s role as the institution ultimately entrusted with safeguarding press rights. We decided to tackle the question with a large-scale project, empirically coding every reference to the press by a U.S. Supreme Court Justice in the Court’s opinions since 1784.
Key findings include:
- A stark deterioration in both the quantity and quality of the Court’s depictions of the press across every studied measure. The Justices are now less likely to talk about the press than they were in the past, and when they do, it is more often in a negative light.
- A clear movement away from framings of the press that are traditionally positive in tone (like the press’s role in democracy or its value to the Founders) and toward framings that are traditionally negative (like the press’s impact on the reputation or privacy of individuals).
- A substantial correlation between ideology and the Justices’ attitudes toward the press throughout history. Interestingly, though, we also detect new trends of conservative Justices becoming even more negative about the press and liberals shifting away from positive comments and toward more neutral depictions.
- Individualized data revealing the most- and least press-friendly Justices of all time and helping us explore the specific patterns of the currently sitting Justices, providing insight for the future.
Here is a comment on the article by Bruce E.H. Johnson:
The authors note a troubling trend for the future of press freedom in the United States: distrust, perhaps a product of Trumpism, mistrust of the media among conservative justices, coupled with a liberal bench that is hesitant to advance and promote free press protections.
In November 1974, I was in the room when Justice Stewart delivered his famous speech "Or of the Press" reminding us "that the Free Press guarantee is, in essence, a structural provision of the Constitution." We have come a long way from that hopeful era. The lamps are going out all over America.
- Adam Liptak, "The Supreme Court’s Increasingly Dim View of the News Media," The New York Times (April 19)
- Jessica Roberts & Adam Maksi, "Attacks on the American Press: A Documentary and Reference Guide" (Greenwood, July 31, 2021)
Court grants review in trustee censure case (by David L. Hudson, Jr.)
Does a local governmental body violate the First Amendment when it censures one of its members? That intriguing question forms the basis of the Court’s grant of review in Houston Community College System v. Wilson.
Wilson, then one of the nine trustees of the Board of the college system, alleged that his colleagues were violating board bylaws. He disagreed with the decision to open another campus and took his complaints public. He later filed several lawsuits against Houston Community College System (HCC).
A federal district court dismissed Wilson’s claim, finding that he had not suffered an actual injury to have standing to maintain his free speech lawsuit. The district court reasoned that the Board’s censure did not prevent Wilson from speaking or performing his official duties.
On appeal, a three-judge panel of the Fifth Circuit Court of Appeals reinstated Wilson’s claim, writing that “Wilson’s allegation of retaliatory censure is enough to establish an injury in fact.”
The Fifth Circuit panel noted that “the Supreme Court has long stressed the importance of allowing elected officials to speak on matters of public concern.” The panel cited the Court’s decision in Bond v. Floyd (1966), a decision in which the Court ruled that the Georgia House of Representatives could not expel civil rights leader and member Julian Bond for expressing his ardent opposition to the Vietnam War.
However, in its cert. petition HCC argued that the panel’s decision was misguided and threatens the operation of local democracy by chilling the use of the censure power.
“Throughout American history," it maintained, "elected bodies at all levels of government have exercised the authority to censure their own members” threads. The petition also argued that an elected body’s ability to censure is a form of government speech immune from First Amendment scrutiny.
However, in its brief in opposition, Wilson counters that a government punishing a speaker “for merely expressing disagreement with a political majority” is core political speech protected by the First Amendment.
Yale v. Stanford law clinics square off
→ Counsel of Record for Petitioner: Richard A. Morris (with Jeffrey L. Fisher, Brian H. Fletcher, & Pamela S. Karlan for Stanford Law School Supreme Court Litigation Clinic)
→ Counsel of Record for Respondent: Michael B. Kimberly (with Eugene R. Fidell for Yale Law School Supreme Court Clinic)
“Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.”
— Justice Harlan in NAACP v. Alabama (1958)
Earlier this week the Court heard oral arguments in Americans for Prosperity Foundation v. Rodriguez and Thomas More Law Center v. Bonta. The issue raised in those cases was "whether the exacting scrutiny the Court has required of laws that abridge the freedoms of speech and association outside the election context – as called for by NAACP v. Alabama ex rel. Patterson and its progeny – can be satisfied absent any showing that a blanket governmental demand for the individual identities and addresses of major donors to private nonprofit organizations is narrowly tailored to an asserted law-enforcement interest."
The controversy involved a California confidential disclosure requirement applicable to donors to non-profits groups. The Americans for Prosperity Foundation, a tax-exempt nonprofit founded by the Koch brothers, and the Thomas More Law Center refused to comply with the law, claiming it violated their First Amendment right to freedom of association and that it could subject their donors to harassment.
Excerpts from oral arguments
- Justice Kavanaugh: "'A critical corollary of the freedom to associate is the right to maintain the confidentiality of one’s associations, absent a strong governmental interest in disclosure.'" (quoting ACLU & NAACP amicus brief). And: "Doesn't it show that it's not really all that essential to a state's interest if 46 other states have seen fit to regulate without infringing on the right to assemble or the right to associate in this same way?"
- Justice Alito: "Do you doubt that donors to organizations that take unpopular positions on hot button issues have reason to fear reprisals if those donations are made public? Do you think that's a legitimate fear in our current atmosphere or do you think it's paranoid?"
- Justice Thomas: "In this era there seems to be quite a bit of loose accusations about organizations — for example, an organization that had certain views might be accused of being a white supremacist organization or racist or homophobic.”
- Justice Barrett: "What if [there was] a law on a state university campus that made it illegal for anyone to engage in any speech whatsoever, but it was also the case that most of the students shrugged and said, ‘that is fine, I am not planning to demonstrate or picket,’ and there were just a small amount of people bothered by it. Would it be facially unconstitutional?”
- Justice Breyer: "This case is really a stalking horse for campaign finance disclosure laws."
- Justice Kagan: "Most charities disclose their donors. In fact, it’s part of their strategy, that the more disclosure there is, the more fund-raising and association there is."
→ C-SPAN audio and transcript here.
- Amy Howe, "Justices doubtful on California donor-disclosure requirement," SCOTUSblog (April 26)
- Adam Liptak, "Supreme Court Wary of Donor Disclosure Requirement for Charities," The New York Times (April 26)
- Tony Mauro, "Supreme Court to Tackle a Rare First Amendment Test of Freedoim of Association," FreedomForum (April 19)
- "Plaintiffs Ask Court To Enjoin Significant Portions Of Defendant’s Business Activities Based On Recent Patent Application," National Law Journal (April 21)
- "Clearview AI Plans to Take its BIPA Challenge Over Standing to the Supreme Court," National Law Journal (Feb. 24)
- "Clearview face-recognition controversy continues — privacy v. free speech," FAN 281 (Dec. 16, 2020)
- "Floyd Abrams’ march into postmodernity — facial recognition and the First Amendment," FAN 267 (Aug. 19, 2020)
Speech First files suits in student speech cases
This from Fox News:
Filed [April 8], the lawsuit takes aim at Virginia Tech's policies on harassment and discrimination, bias-related incidents, and its computer policy, which prohibits the use of the network for "partisan political purposes." It also targets the university's ban on distributing literature or petitions without prior approval.
"Through this elaborate disciplinary apparatus, administrators at Virginia Tech have intimidated students into silence, refraining altogether from expressing comments or viewpoints that might be perceived as controversial or offensive," Speech First president Nicole Neily said in a statement provided to Fox News.
- "Speech First Sues Virginia Tech, Challenging Four Policies That Enable Broad Censorship, Speech First" (April 8) (complaint here)
- Annie Martin, "Group Sues UCF, alleging school seeks to suppress speech," Orlando Sentinel (Feb. 17)
- Joe Cohn, "Flawed bill to protect campus free speech signed into law in West Virginia; FIRE urges fixes,' FIRE (April 27)
- Zach Greenberg, "Tennessee Tech punishes professors for flyer parodying Game of Thrones," FIRE (April 26)
- "North Dakota enacts law ensuring colleges and universities fulfill their First Amendment obligations," FIRE (April 19)
- "Montana enacts two laws to protect free speech rights on college campuses," FIRE (April 5)
Kennedy & Volokh on taboos in the classroom
- Randall Kennedy & Eugene Volokh, "The New Taboo: Quoting Epithets in the Classroom and Beyond," Capital University Law Review (2021). From the introduction to the essay:
Is it wrong for professors to quote epithets in class or in other educational settings? In law schools, this question has arisen as to “nigger” when a professor quoted the defendants’ speech from a leading First Amendment case (Brandenburg v. Ohio) in a First Amendment class; a professor (one of us) quoted the facts in a rare example of a hate speech prosecution, also in a First Amendment class; a professor teaching a class on legal problem-solving quoted the word in a discussion of Facebook’s implementation of its “hate speech” policy; a professor teaching a torts class quoted the facts of a case involving emotional distress and wrongful discharge claims; a professor teaching a class about legal history quoted a statement attributed to Patrick Henry; a professor posed a hypothetical about provocation and self-defense in a criminal law class; a guest lecturer in a class on tobacco regulation displayed and quoted copies of racist advertising; and a professor at Emory University, in discussing discrimination against Native Americans, mentioned that “red nigger” and “sand nigger” had been used as slurs against them.
In other departments, the question has arisen when a political science professor quoted a passage from Martin Luther King, Jr.’s Letter from Birmingham Jail; a history professor quoted a 1920 statement by United States Senator James Reed opposing the League of Nations; a history professor quoted James Baldwin’s The Fire Next Time; a creative writing professor discussed another statement by James Baldwin; an African-American Literature professor quoted The Narrative of the Life of Frederick Douglass; an anthropology professor discussed “a video of an incident on a New York subway where a white man repeatedly yelled” the word at
black passengers; an art history professor quoted a line from N.W.A.’s Fuck tha Police and wrote the group’s full name (Niggaz Wit Attitudes); an Africana Studies professor discussing Tupac Shakur wrote the name of Tupac’s song called “N.I.G.G.A. (Never Ignorant About Getting Goals Accomplished)” on the whiteboard; a Princeton anthropology professor offered the word as an example of what the class would be exploring in a study of taboos; a philosophy professor discussing the Washington Redskins’ team name analogized it to “having a team called like, uh, the Florida [N-words]”; a history and art theory professor gave the word “as an example of a word that a community has reclaimed”; a music history professor quoted the word when discussing racist songs in 1800s musical theater; and a dean quoted the name of comedian civil rights activist Dick Gregory’s autobiography.
Unsurprisingly, these controversies have arisen as to the word “fag” as well. One university fired a tenured media law professor (and department chair) for quoting both words, one when discussing a leading campus speech code case and the other when teaching Snyder v. Phelps (the case which upheld protesters’ rights to picket on the occasion of a military funeral, including with signs saying “God Hates Fags”). Another professor’s quoting the word in a discussion of Snyder, in a class at a law school, led to student complaints and demands that the word be expurgated in the future. Some students at another law school have likewise demanded that professors not quote the “f-word” (meaning “fag”).
- Eugene Volokh, "'The New Taboo: Quoting Epithets in the Classroom and Beyond' Now Published," The Volokh Conspiracy (April 26)
New scholarly article on revenge porn
Roni Rosenberg & Hadar Dancig-Rosenberg, "Reconceptualizing Revenge Porn," Arizona Law Review (2021)
Revenge porn has become an epidemic in the United States in recent years. A debate among legislators has emerged, focused primarily on the question of whether to criminalize the phenomenon, with most states having already done so, based on the grave harm that revenge porn inflicts on victims and the ease of distributing it. However, the conceptual questions of how to categorize the offense, and why, have not received much attention.
Contrary to the prevailing approaches in the United States, which sporadically define revenge porn as an infringement of privacy, as obscenity, or as some other offense, this Essay proposes, for the first time, theoretical grounds for categorizing it as a sex offense.
This novel, though possibly controversial, reconceptualization more accurately reflects the social values that are violated by the phenomenon, more correctly labels the behavior of the offender, and more succinctly recognizes the nature of the harm inflicted on the victim. Categorizing revenge porn as a sex offense has not only theoretical but also practical implications, both for victims and released sex offenders.
New scholarly article on proposed exception to Sect. 230
- Michael L. Rustad, "Creating a Public Health Disinformation Exception to CDA Section 230," SSRN (April 26)
So to Speak podcast on the Mahanoy case
Ninth grader Brandi Levy was frustrated when she didn’t make her high school’s varsity cheerleading team so she posted an intemperate video about it on Snapchat to her 250 “friends.”
Four years later, that video, which led to her suspension from the junior varsity cheer team, will take center stage at the United States Supreme Court.
On today’s episode of So to Speak: The Free Speech Podcast, we are joined by LoMonte, who also leads the Brechner Center for Freedom of Information, and FIRE Program Officer Lindsie Rank to discuss the Mahanoy case, which could answer some important lingering questions about student speech rights off-campus and on social media.
The Supreme Court is set to hear oral arguments in the case on Wednesday, April 28. A decision is expected this summer.
- "The Supreme Court Case That Could Define the Next Era of Student Speech Rights," First Amendment Watch (April 27)
- Eugene Volokh, "Another Judge Criticizes Excessive Sealing Requests in Commercial Litigation," The Volokh Conspiracy (April 27)
- "Music Producer “Dr. Luke” Not a Public Figure, NY Appellate Court Rules," First Amendment Watch (April 23)
- "Anti-Riot or Anti-Protest? Florida Governor Signs Contentious New Bill," First Amendment Watch (April 20)
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)
- Thomas More Law Center v. Becerra (OA: April 26, 2021)
- Americans for Prosperity Foundation v. Rodriguez (OA: April 26, 2021)
- Mahanoy Area School District v. B.L. (OA: April 28, 2021)
- Houston Community College System v. Wilson
- Mahanoy Area School District v. B.L.
- Thomas More Law Center v. Becerra
- Americans for Prosperity Foundation v. Rodriguez
- Trump v. Knight First Amendment Institute (judgment is vacated, and the case is remanded to the Second Circuit to dismiss as moot)
- In re Opinions and Orders od the FISC Containing Novel or Significant Interpretations of Law
- Campbell v. Pennsylvania School Boards Association, et al. (Institute for Free Speech amicus brief in support of Petitioners)
- Boardman v. Inslee
- Thompson v. Marietta Education Association
- Hamilton v. Speight
- City of Austin, Texas v. Reagan National Advertising of Texas Inc.
- Institute for Free Speech v. Becerra
- Arlene’s Flowers Inc. v. Washington
- Thompson v. DeWine
- Stockman v. United States
- 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
- AbbVie Inc., et al. v. Federal Trade Commission (re scope of Noerr-Pennington doctrine)
- 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) (held: 9-0: FCC decision to repeal or modify three of its media ownership rules was not arbitrary or capricious under the Administrative Procedure Act)
- 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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