"If our speech has no meaning, nothing has meaning."
– Albert Camus, Notebooks: 1942-1951 (1965), p. 23
The free speech problem of our times is meaningless speech.
We need less of it, not more. Such speech is of no real value in the marketplace of ideas; it simply subverts the truth . . . whatever the chances are we can discern it. If one is honest, such speech serves no Enlightenment ideal, no self-realization purpose, no checking function, and certainly no self-government objective. Mind you, this is no prelude to a call for government action since no such action could cure the cultural problem.
As David Skover and I put it a quarter-century ago: The First Amendment is more than what judges write or lawyers argue, it is also, and more importantly, what society does with speech. And when any society devalues speech, as when it reduces public discourse to a war of cliché-ridden words, no Supreme Court Justice, Ivy League professor, think-tank pundit, or advocacy group can save it from the curse of what Professor Pierre Schalg once tagged as "junk speech."
Given the way professors typically teach free speech in law schools, it is no wonder that students get intoxicated on high-sounding theories that bear little or no resemblance to how speech actually works in our society. Worse still, in the war of words by all against all, everyone is quick to assert his or her CONSTITUTIONAL RIGHT to speak. Those who disagree with them, be they on the Fox News right or the MSNBC left, are labeled as evil censors. Meaningless speech, we must never forget, is vital to mindless action, which is much on post-modern display in what we all too freely call our "culture."
* * * *
"The sun does not rise in the east one day and in the west the next."
So declared the late Christopher Hitchens. But who is to say that he was right? He had his opinions about the sun rising, but so do others who feel no need to anchor their views in scientific logic. Hence, where the sun rises depends on where one stands, physically and politically. Now there is a mantra meant for our historical moment.
The contamination of the intellect is neither new nor something First Amendment jurisprudence has been able to alleviate. Predictably, the high court judicial response has been abdication, albeit under the cover of a jurisprudence grounded in hypocrisy. The problem is so bad that even last century Leonard W. Levy felt compelled to ask: "What is becoming of the culture of discourse in America? What has become of the Madisonian experiment in freedom?" As the Pulitzer Prize-winning historian knew all too well, history sometimes repeats itself and with a vengeance. By that measure, and to quote Simone Weil: "There has been a lot of freedom of thought over the past few years, but no thought." Think about that.
The continued impoverishment of the intellect, the blurring of fact and fiction, the ideologically determined use of evidence, and the denial of scientific truths have created an environment where speech is prized simply for speech's sake — forget all that value talk! Propaganda (an old term for meaningless speech) has become "the main instrument for the dissemination of social ideals"; it "consists almost entirely of clichés. This cannot be countered," Paul Engelmann added, "by an 'abolition' of propaganda, but only by a cliché-free" kind of public discourse. But in our Tweet-plagued world of social media, who dares to think seriously about the use and abuse of language?
As Engelmann also warned: "Not until the word is prized again as the treasure it is, instead of being treated as a shoeshine rag, can it regain its power" to open minds. The task of our time, and that of the American mind, is to make less speech more meaningful, to appreciate the dangers of a #mindset, and to understand how all the liberty in the world cannot save a counterfeit culture. After all, when your autonomous Tesla is speeding wildly out of control, the last command should not be "faster!"
- Ronald Collins, "The Holmesian Experiment & The Democratization of Truth," in Joseph Russomanno, ed., "Speech Freedom on Campus: Past, Present & Future" (Lexington Books, 2021)
- Richard Hasen, "Cheap Speech" (Yale University, forthcoming Spring 2022) (see also here)
- Pierre Schlag, "This Could Be Your Culture--Junk Speech in a Time of Decadence," Harvard Law Review (1996)
- Eugene Volokh, "Cheap Speech and What It Will Do," Yale Law Journal (1995)
Soon-to-be-released: Rauch on 'The Constitution of Knowledge'
- Jonathan Rauch, "The Constitution of Knowledge: A Defense of Truth" (Brookings Institution Press (June 22, 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 America’s 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 didn’t 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—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.
Soon-to-be-released: Redish on commercial speech
- Martin Redish, "Commercial Speech as Free Expression: The Case for First Amendment Protection" (Cambridge University Press, June 10, 2021)
For many years, commercial speech was summarily excluded from First Amendment protection, without reason or logic. Starting in the mid-1970s, the Supreme Court began to extend protection but it remained strictly limited.
In recent years, that protection has expanded, but both Court and scholars have refused to consider treating commercial speech as the First Amendment equivalent of traditionally protected expressive categories such as political speech or literature. Commercial Speech as Free Expression stands as the boldest statement yet for extending full First Amendment protection to commercial speech by proposing a new, four-part synthesis of different perspectives on the manner in which free expression fosters and protects expressive values.
This book explains the complexities and subtleties of how the equivalency principle would function in real-life situations. The key is to recognize that as a matter of First Amendment value, commercial speech deserves treatment equivalent to that received by traditionally protected speech.
Forthcoming book: Andrew Doyle of why free speech matters
- Andrew Doyle, "Free Speech: Why it Matters" (Constable, Nov. 2, 2021)
Towards the end of the twentieth century, those who advocated what became known as 'Political Correctness' rightly identified the ways in which marginalised groups were often disparaged in everyday speech. Casual expressions of homophobia, racism and sexism went from being commonplace to being rejected by the vast majority of the public over the course of just two decades.
Since then, the victories of Political Correctness have formed the basis for a new intolerant mindset, one that seeks to move beyond simply reassessing the social contract of shared discourse to actively policing speech that is deemed offensive or controversial. Rather than confront bad ideas through discussion, it has now become common to intimidate one's detractors into silence through 'cancel culture', a ritual of public humiliation and boycotting which can often lead to the target losing his or her means of income.
Free Speech is a defence of our right to express ourselves as we see fit, and takes the form of a letter to those who are unpersuaded. Taking on board legitimate concerns about how speech can be harmful, Andrew Doyle argues that the alternative - an authoritarian world in which our freedoms are surrendered to those in power - has far worse consequences.
Forthcoming book: Karem on 'the death of American journalism'
- Brian J. Karem, "Free the Press: The Death of American Journalism and How to Revive It" (Prometheus, Dec. 15, 2021)
While the phrase “Fake News” may be a recent phenomenon, the relationship between journalists and the politicians they cover has been on a course for disaster for decades. From Richard Nixon’s disdain for the press to Donald Trump’s claims that reporters are the “enemy of the people,” animosity between the press and the presidency has reached a fever pitch. In Free The Press, renowned journalist Brian J. Karem asks the question “How did we get here?” And perhaps more importantly, “How do we fix it?”
Blending his experiences as a veteran reporter with trenchant analysis of the erosion of trust between the press and the government over the past 40 years, Free The Press gives readers a unique perspective on the challenges facing journalism as well as the rise of hostility between these institutions. While early presidents like Theodore Roosevelt and Dwight Eisenhower enjoyed close relationships with the press, the Vietnam War saw a schism develop that has never fully healed.
Since then, each and every president has overseen the withering of relations between the Executive Branch and the so-called Fourth Estate: Ronald Reagan weaponized his partnership with FCC Chairman Mark Fowler to weaken the Fairness Doctrine; George H.W. Bush installed a “pool” system for reporters covering Operation Desert Storm, co-opting and guiding the work of supposedly independent journalists; Bill Clinton’s landmark telecommunications act included harmful regulations regarding the internet and allowed for the rise of media conglomerates; George W. Bush’s Patriot Act further stifled a suffocating press; Barack Obama’s administration repeatedly used the Espionage Act – a relic of the WWI-era – to prosecute officials and whistle-blowers who talked to journalists. All of this leads directly to Donald Trump’s most egregious offenses against the media. .
Forthcoming book: 'Challenges to Academic Freedom'
- Joseph C. Hermanowicz, editor, "Challenges to Academic Freedom" (Johns Hopkins University Press, Nov. 23, 2021)
Academic freedom is an idea so closely associated with academic work—at least in the West—that it assumes a defining characteristic of the academic profession. Yet it is under recurring threat. Confusion endures about what professors have a defensible right to say or publish, particularly in extramural forums like social media. At least one source of the confusion in the United States is the way in which academic freedom is often intertwined with a constitutional freedom of speech. Though related, the freedoms are distinct.
In Challenges to Academic Freedom, Joseph C. Hermanowicz argues that, contrary to many historic views, academic freedom is not static. Rather, we may view academic freedom as a set of relational practices that change over time and place. Bringing together scholars from a wide range of fields, this volume examines the current conditions, as well as recent developments, in the status of academic freedom in the United States. Authors consider topics such as
- the sources of recurring threat to academic freedom;
- administrative interference and overreach;
- the effects of administrative law on academic work, carried out under the auspices of Title IX legislation, diversity and inclusion offices, research misconduct tribunals, and institutional review boards;
- the tenuous tie between academic freedom and the law, and what to do about it;
- the highly contested arena of extramural speech and social media; and
- academic freedom in a contingent academy.
Adopting varied epistemological bases to engage their subject matter, the contributors demonstrate perspectives that are, by turn, case study analyses, historical, legal-analytic, formal-empirical, and policy oriented. Traversing such conceptual range, Challenges to Academic Freedom demonstrates the imperative of academic freedom to producing outstanding scholarly work amid the concept's entanglements in the twenty-first century.
Contributors: Patricia A. Adler, Peter Adler, Timothy Reese Cain, Dan Clawson, Joseph C. Hermanowicz, Philip Lee, Gary Rhoades, Laura Stark, John R. Thelin, Hans-Joerg Tiede, Gaye Tuchman, Stephen Turner, Eve Weinbaum
New book: Oxford handbook on free speech
- Adrienne Stone & Frederick Schauer, eds., "The Oxford Handbook of Freedom of Speech" (Oxford University Press, March 26, 2021)
Freedom of speech is central to the liberal democratic tradition. It touches on every aspect of our social and political system and receives explicit and implicit protection in every modern democratic constitution. It is frequently referred to in public discourse and has inspired a wealth of
legal and philosophical literature.
The liberty to speak freely is often questioned; what is the relationship between this freedom and other rights and values, how far does this freedom extend, and how is it applied to contemporary challenges?
The Oxford Handbook on Freedom of Speech seeks to answer these and other pressing questions. It provides a critical analysis of the foundations, rationales, and ideas that underpin freedom of speech as a political idea, and as a principle of positive constitutional law. In doing so, it examines
freedom of speech in a variety of national and supra-national settings from an international perspective.
Compiled by a team of renowned experts in the field, this handbook features original essays by leading scholars and theorists exploring the history, legal framework and controversies surrounding this tennet of the democratic constitution.
New book: Berkowitz on 'Dangerous Ideas'
- Eric Berkowitz, "Dangerous Ideas: A Brief History of Censorship in the West, from the Ancients to Fake News" (Beacon Press, May 4, 2021)
A fascinating examination of how restricting speech has continuously shaped our culture, and how censorship is used as a tool to prop up authorities and maintain class and gender disparities
Through a compelling narrative, historian Eric Berkowitz reveals how drastically censorship has shaped our modern society. More than just a history of censorship, Dangerous Ideasilluminates the power of restricting speech; how it has defined states, ideas, and culture; and (despite how each of us would like to believe otherwise) how it is something we all participate in.
This engaging cultural history of censorship and thought suppression throughout the ages takes readers from the first Chinese emperor’s wholesale elimination of books to Henry VIII’s decree of death for anyone who “imagined” his demise, and on to the attack on Charlie Hebdo and the volatile politics surrounding the censorship of social media.
Highlighting the base impulses driving many famous acts of suppression, Berkowitz demonstrates the fragility of power and how every individual can act as both the suppressor and the suppressed.
→ Book review by Greg Lukianoff here.
New book: Bitcoin, free tech, & free speech
- Hannah Wolfman-Jones, Nadine Strossen, Santiago Siri, Richard M. Stallman, Pia Mancini & Brittany Kaiser, "System Override: How Bitcoin, Blockchain, Free Speech & Free Tech Can Change Everything" (2020)
Can Bitcoin-derived technologies help us gain control of our finances, governments, and data? Can authoritarianism be fought with technology? Can humanity be steered towards a brighter technological future?
With System Override, you will:
- Learn how your devices are used against you and free alternatives from the founder of the Free Software Movement and GNU, Richard M. Stallman.
- Learn how we can salvage democracy from the forces of corruption and apathy using blockchain from founders of El Partido de la Red (the internet political party in Latin America) and Democracy Earth, Pia Mancini & Santiago Siri.
- Learn how cryptocurrencies relate to freedom from a famed Bitcoin educator.
- Understand why robust collaboration and debate make for a better world online and off from former President of the ACLU (American Civil Liberties Union), Nadine Strossen.
- Discover how your data is used to manipulate you and how you can own your own data with blockchain from Cambridge Analytica whistleblower Brittany Kaiser.
System Override is a deeply-thoughtful, beautifully-written look into how ordinary people and new technologies can create a more free, prosperous, and inclusive future. System Override is more than an informative and engaging read, it is a unique collaboration that best-selling author and psychologist Jonathan Haidt called "one of the rare projects that is truly novel.
- Hannibal Travis, "Crypto Coin Offerings and the Freedom of Expression," Chapman Law Review (2021)
- Hadar Yoana Jabotinsky & Michail Lavi, "Speak Out: Verifying and Unmasking Cryptocurrency User Identity," Fordham Intellectual Property, Media & Entertainment Law Journal (2021)
First Amendment Watch: Amar on America's 'Constitutional Conversation'
- Akhil Reed Amar, “The Words that Made Us: America’s Constitutional Conversation, 1760-1840,” First Amendment Watch (May 4)
In his newest book, The Words that Made Us: America’s Constitutional Conversation 1760-1840, Yale law professor and constitutional historian Akhil Reed Amar tells the story of the first 80 years of democratic debate in the United States. In the author’s words, the book shows how “various widely scattered New Worlders first became Americans and then continued to debate and refine what being American meant.” Even after the states ratified the Constitution, many questions still consumed public debate and discussion. For example, what role should the judiciary play in government—did it possess the power of judicial review of acts of the legislature? Should the country allow slavery in the new territories? Should the federal government create a national bank? Amar parachutes into the thick of these debates using the letters, essays, treatises, and cartoons that gave color to this robust national conversation.
This excerpt focuses on the origins of America’s newspaper culture and the central role it played in forming our democracy. Before America gained its independence, printers tested the limits of British rule by defying the Stamp Act of 1765. Once Americans were free to create their own government, elected officials relied on newspapers to circulate state constitutions and publish public opinion on issues of the day. Although it is only a fraction of Amar’s 800-page book, this excerpt manages to convey a strong message: there would likely have not been any “constitutional conversation” had there not been a vibrant and healthy press to foster it.
Akhil Reed Amar is the Sterling Professor of Law and Political Science at Yale University, where he teaches constitutional law in both Yale College and Yale Law School. He is the author of more than 100 law review articles and several books, most notably The Bill of Rights, America’s Constitution, America’s Unwritten Constitution, The Constitution Today, and now The Words that Made Us: America’s Constitutional Conversation, 1760-1840 which is now available for purchase on Amazon or Barnes and Noble.
This excerpt was published with the permission of Akhil Reed Amar and Basic Books publishing.
→ Click here to read an excerpt titled "Stamps, Paper, and the Press."
YouTube: First Amendment Salon on facial recognition data gathering
Virtual conference: “Facial Recognition Data Gathering and the First Amendment” with
Upcoming webinar: 'Reclaiming the Narrative: Defamation Lawsuits and the 2020 Election'
→ Date: May 19, 2:00 PM ET: This from the folks over at First Amendment Watch:
This year, Fox News was hit with two major defamation lawsuits alleging that the network repeatedly aired false claims about voting fraud in the 2020 presidential election. The lawsuits, filed by the voting technology companies Smartmatic and Dominion Voting Systems, accuse Fox News of intentionally spreading false information about their voting software to curry favor with Donald Trump and his base. Each suit requests more than $1 billion dollars in damages. The lawsuits are part of a larger trend of plaintiffs using libel claims to curb the spread of misinformation: Trump lawyers Rudy Giuliani and Sidney Powell are also facing $1 billion lawsuits for claiming that Dominion’s voting machines were rigged in favor of Joe Biden.
False information spread online plainly has a real impact on people’s lives: journalists have shown how viral misinformation about COVID-19 likely quickened its spread, as well as how disinformation about the voting process was used to discourage thousands of Americans from participating in the 2020 election. However, the impulse to use libel suits to target a news organization has left many First Amendment lawyers uneasy. Defamation suits have historically been used by the powerful to silence their critics. Could this strategy unintentionally make it easier for bad actors to sue journalists?
Join us on May 19th at 2pm EST for a #FAWPublicForum for a conversation about defamation law, First Amendment doctrine, and the problem of disinformation in our modern age. Our special guests include:
- Lyrissa Lidsky, Dean of the University of Missouri Law School and Judge C.A. Leedy Professor of Law,
- Jonathan Peters, Media Law Professor at the University of Georgia and press freedom columnist for Columbia Journalism Review, and
- RonNell Andersen Jones, Lee E. Teitelbaum Professor of Law at University of Utah Law School.
- First Amendment Watch Staff Writer Soraya Ferdmanwill moderate the discussion.
→ Register here.
Podcast: Cato Institute program on Facebook oversight
- "Facebook Oversight Board Upholds Trump Ban … with Conditions," Cato Daily Podcast (May 5)
So to Speak podcast on-campus censorship
On this episode of So to Speak: The Free Speech Podcast we are joined by Lewis & Clark Associate Professor of English Lyell Asher to discuss his 2018 article for the Chronicle of Higher Education, “How Ed Schools Became a Menace.”
Also joining the conversation is FIRE President & CEO Greg Lukianoff, co-author of the bestseller “The Coddling of the American Mind.”
- Eric Tucker, "Washington Post says U.S. secretly obtained reporters' records," Associated Press (May 10)
- Christian Britschgi, "New Lawsuit Argues That D.C.'s Ban on Dancing at Weddings Violates the First Amendment," Reason (May 10)
- Eugene Volokh, "Recent Developments in Controversies About Quoting Slurs from Court Cases," The Volokh Conspiracy (May 8)
- Steve Contorno, "Did DeSantis violate First Amendment with Fox News-only bill signing?," Tampa Bay Times (May 7)
- "Texas AG unblocks Twitter critics after lawsuit," Associated Press (May 7)
- Eugene Volokh, "Baltimore Prosecutor Asking FCC to Investigate TV Station for Criticizing Her," The Volokh Conspiracy (May 7)
- Sabrina Conza, "University of Oklahoma refuses to end compelled speech in diversity training program," FIRE (May 5)
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)
- American Civil Liberties Union v. U.S.
- 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)
Last scheduled FAN