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First Amendment News 313: FIRE releases 2021 College Free Speech Rankings

The Foundation for Individual Rights in Education (FIRE) has just released its 2021 College Free Speech Rankings. Here are a few excerpts from FIRE's press release:

Prospective college students who want to make sure that their free expression will be protected should consider Claremont McKenna College or the University of Chicago. But if they land at DePauw University or Marquette University, their free speech rights are at serious risk.

That’s because DePauw and Marquette rank dead last in the 2021 College Free Speech Rankings. Presented by the Foundation for Individual Rights in Education, College Pulse, and RealClearEducation, the rankings assess a school’s free speech climate based upon the opinions of over 37,000 students at 159 of America’s largest and most prestigious campuses — the largest survey of campus free expression ever performed.

“Existing ranking systems don’t look at a core aspect of higher education: the ability to think, discuss, and speak freely,” said FIRE Executive Director Robert Shibley. “Our rankings guide prospective students and their parents toward schools that value free speech and open inquiry. They also help us hold schools accountable and demand they do better.”

Explore the Rankings

The report takes into account the varied dimensions of free expression on campus — from the ability to discuss challenging topics like race, gender dynamics, and geo-political conflicts, to whether students hold back from openly sharing their views. The rankings are designed to help students and parents make enrollment decisions, and score the overall speech climate on each campus.

The top five colleges for free speech:
  1. Claremont McKenna College
  2. University of Chicago
  3. University of New Hampshire
  4. Emory University
  5. Florida State University
The worst colleges for free speech:
  1. Rensselaer Polytechnic Institute
  2. Boston College
  3. Louisiana State University
  4. Marquette University
  5. DePauw University

. . .

Other highlights from the report include:

  • More than 80% of students report self-censoring their viewpoints at their colleges at least some of the time, with 21% saying they censor themselves often.
  • Generally, students showed much greater intolerance for campus speakers with conservative positions.
  • Racial inequality, abortion, and gun control top the list of most difficult subjects to discuss.
  • 66% of students report some level of acceptance for speaker shout-downs (up 4 percentage points from FIRE’s 2020 report) and 23% consider it acceptable for people to use violence to stop certain speech (up 5 percentage points). Two elite women’s colleges, Wellesley College and Barnard College, top this list, supporting the use of violence at 45% and 43% respectively.
  • Only a third of students say that their college administration makes it either very or extremely clear that they will protect free speech on campus.

Disclosure: Though FAN has complete editorial control over its content, it is sponsored by FIRE.

Nevada high court rules on scope of state's anti-SLAPP protections 

Justice Elissa Cadish (Supreme Court of Nevada)

The case is Williams v. Lazer, which was decided earlier this month by the Nevada Supreme Court. The controversy involves a real estate agent, Charles "Randy" Lazer, who sued petitioner, Daphne Williams (an African American woman), for filing a complaint with the Nevada Real Estate Division (NRED), alleging that she experienced racism and sexism during a real estate transaction.

The issues raised in the case concern the scope of the state's anti-SLAPP protections, including:

  1. what the defendant (appellant) must show to satisfy the statute's good faith standard for protected speech,
  2. how the statute works in tandem with common law privileges, and
  3. what is required of the plaintiff in terms of showing a probability of prevailing on the merits in order to proceed?

Writing for a unanimous court, Justice Elissa F. Cadish concluded that:

the appellant had met the good faith standard under the anti-SLAPP framework because her statements were either opinions, were truthful, or were made without knowledge of their falsehood, as supported by her sword affidavit. We further conclude that the absolute litigation privilege applies as the second prong of the anti-SLAPP analysis and that a NRED proceeding is quasi-judicial for purposes of the privilege. As appellants statements meet the requirements for anti-SLAPP protection and the absolute litigation privilege applies such that respondent cannot prevail on his claims . . . .

Accordingly, the district court erred in concluding that [the plaintiff/respondent] demonstrated a probability of prevailing on his defamation claims. Therefore, we reverse the district court's ordering denying Williiam's anti-SLAPP special motion to dismiss and remand with instructions that the district court grant the motion.

Lawyers for the prevailing party: Marc J. Randazza & Alex J. Shepard

 Appellant's merits brief (Marc J. Randazza & Alex J. Shepard)

Amicus brief of ACLU of Nevada (counsel: Arianna Demas & Nicole C. Levy)

 Amicus brief of First Amendment Lawyers Association (Clyde DeWitt counsel)

Internet trade associations sue Texas 

Two Internet trade associations are suing Texas and its Attorney General Ken Paxton over a recent law that regulates social media companies’ ability to remove users from their platforms.

Filed on September 22nd in the U.S. District Court for the District of Texas Austin Division, NetChoice and Computer and Communications Industry Association (CCIA), which represent Facebook, Twitter, YouTube, and others, contend that  House Bill 20 violates the First Amendment.

HB 20 “imposes impermissible content- and viewpoint-based classifications to compel a select few platforms to publish speech and speakers that violate the platforms’ policies,” the complaint reads.

Facebook, Twitter, and other social media companies “have First Amendment rights to engage in their own speech and to exercise editorial discretion over the speech published on their websites and applications,” NetChoice and CCIA argue. The First Amendment applies to government action regarding speech, and not to the content moderation of private entities such as Twitter and Facebook.

The complaint also alleges that the Texas law would require social media platforms to disseminate propaganda and misinformation. “At a minimum, H.B. 20 would unconstitutionally require platforms like YouTube and Facebook to disseminate, for example, pro-Nazi speech, terrorist propaganda, foreign government disinformation, and medical misinformation. . . .

 Legal complaint in Netchoice v. Paxton (W. Dist. Tex., case 1:21-cv-00840-RP) here.

New Freedom Forum study on First Amendment 

A full 36 percent of Americans believe that “hate speech should not be protected by the First Amendment, according to a new survey released this afternoon by the Freedom Forum, a nonpartisan public policy center.

The survey, a successor to the Freedom Forum’s long-running State of the First Amendment report, finds that 94 percent see the First Amendment as “vital,” but this broad support erodes as participants share their views on the amendment’s individual freedoms — freedom of speech, press, religion, petition and assembly.

Among the Freedom Forum’s findings:

  • About 36 percent say that preventing hate speech — speech that conveys hate for others — is more important than maintaining free-speech protections. About 35 percent said preserving free-speech guarantees is more important, and 28 percent expressed no preference.
  • The news about the news is not good. Only 14 percent of respondents say they trust the news media, and 41 percent say that journalists pose a threat to the First Amendment.
  • There’s a clear split over whether businesses should be required to fulfill customers’ requests if they violate personal religious beliefs, with 37 percent of respondents on each side of the debate.
  • The protests of recent years have led to dramatically greater awareness of the right of assembly, with 65 percent able to identify it from a list of liberties.
  • Petition remains the least known of First Amendment freedoms, but 40 percent of respondents said they have contacted public officials seeking to change a law or policy.

Full report here.

State of Hate Index released by Bard Center

Kenneth S. Stern, Director, Bard Center for the Study of Hate, wrote the preface to a new report by political scientist Robert Tynes, which the Center recently released. The report examines how hate manifests itself and is constrained in the 50 states; it examines multiple indicators in order to suggest when and where hate might be more likely to occur. Here is Mr. Stern's preface to the report:

The demonization and/or dehumanization of others is a larger phenomenon than just how many swastikas are drawn on synagogues or people attacked for who they are perceived to be. Sometimes hate is normative and not expressed viscerally, at times through laws that exclude people from civil rights and other protections based simply on who they are or who they love. Sometimes we see data about the various specific phenomena that reflect hate, but the data are usually incomplete and siloed.

What Tynes directs us to do is think more broadly. What are the various factors in each state that can be quantified to give us information about hate writ large, and the chances people will encounter it?

We hope this landmark study will spur others to replicate this type of approach. One might quibble about which factors are included (or not included), and the relevant weights one data set or another is given. But the larger frame is the major contribution of Tynes’s approach—to see hate as a combination of factors operating simultaneously in a defined geographic area.

We also hope that human rights communities, legislators, business and religious leaders, and others in states toward the bottom of this Index will use this study to advocate changes that can improve the lives of their neighbors. Law can be amended or adopted, and practices improved, that can reduce the quantity of hate. Tynes’s Index is a guidepost of what changes should be considered.

BCSH thanks GS Humane Corporation for understanding the importance of this project and underwriting it, and Bard colleagues and others who reviewed the text, and helped design and promote it.

Banned Books Week (Sept. 26-Oct. 2)

This item from Jackie Farmer over at FIRE:

Banned Books Week logo

[This past Monday marked] the start of Banned Books Week. This annual celebration of the right to read serves as an opportunity to reflect on the impact of censorship and start conversations about preserving academic freedom and sparking intellectual curiosity.

Before any of those conversations can start, though, there is always the same question:

“Does book banning and censorship still actually happen?”

The answer this year, and every year, is yes.

Across the country students and faculty are pushing back against book bans and calls to limit their right to study or assign works that some may find controversial.

However, beyond these “traditional” acts of censorship is another trend worth highlighting: the proliferation of the idea that words and books can constitute violence.

While FIRE has and will continue to defend the rights of even those that call for censorship or make arguments equating speech with violence, it’s important to break down the illiberal nature of calling any works with which you disagree an act of “violence.”

Earlier this month, FIRE President and CEO Greg Lukianoff and former ACLU President Nadine Strossen published a piece addressing this argument after it was posed by a guest on the WNYC podcast On the Media.

Forthcoming books

In The United States of Anonymous, Jeff Kosseff explores how the right to anonymity has shaped American values, politics, business, security, and discourse, particularly as technology has enabled people to separate their identities from their communications.

Legal and political debates surrounding online privacy often focus on the Fourth Amendment's protection against unreasonable searches and seizures, overlooking the history and future of an equally powerful privacy right: the First Amendment's protection of anonymity.

The United States of Anonymous features extensive and engaging interviews with people involved in the highest-profile anonymity cases, as well as with those who have benefited from, and been harmed by, anonymous communications. Through these interviews, Jeff Kosseff explores how courts have protected anonymity for decades and likewise, how law and technology have allowed individuals to control how much, if any, identifying information is associated with their communications. From blocking laws that prevent Ku Klux Klan members from wearing masks to restraining Alabama officials from forcing the NAACP to disclose its membership lists to refusing companies' requests to unmask online critics, courts have recognized that anonymity is a vital part of our free speech protections.

The United States of Anonymous weighs the tradeoffs between the right to hide identity and the harms of anonymity, concluding that we must maintain a strong―though not absolute―right to anonymous speech.

New & forthcoming scholarly articles

Calls for altering First Amendment protections to deal with problems caused by social media are often misdirected. The problem is not First Amendment doctrines that protect harmful or false speech. The problem is the health of the digital public sphere: in particular, whether the digital public sphere, as currently constituted, adequately protects the values of political democracy, cultural democracy, and the growth and spread of knowledge. Instead of tinkering with First Amendment doctrines at the margins, we should focus on the industrial organization of digital media and the current business models of social media companies.

Only a handful of social media companies currently dominate online discourse. In addition, the business models of social media companies give them incentives to act irresponsibly and amplify false and harmful content. The goals of social media regulation should therefore be twofold. The first goal should be to ensure a more diverse ecology of social media so that no single company’s construction or governance of the digital public sphere dominates. The second goal should be to give social media companies — or at least the largest and most powerful ones — incentives to become trusted and trustworthy organizations for facilitating, organizing, and curating public discourse. Competition law, consumer protection, and privacy reforms are needed to create a more diverse and pluralistic industry and to discourage business practices that undermine the digital public sphere.

Given these goals, the focus should not be on First Amendment doctrines of content regulation, but on digital business models. To the extent that First Amendment doctrine requires any changes, one should aim at relatively recent decisions concerning commercial speech, data privacy, and telecommunications law that might make it harder for Congress to regulate digital businesses.

What happens when a law enforcement officer makes an offensive comment on social media? Increasingly, police departments, prosecutors, the courts, and the public have been confronted with the legal and normative questions resulting from officers’ racist, sexist, and violent social media comments. On the one side are calls for severe discipline and even termination. On the other side are demands that officers, like others, be permitted to express their views without fear of government retaliation.

Prof. Jonathan Abel (UC Hastings Law)
Prof. Jonathan Abel (UC Hastings Law)

To this point, the regulation of police social media speech has largely been conceived of in First Amendment terms. But criminal procedure doctrine has also begun to be employed in the regulation of police social media speech. Because an officer’s comments may affect her ability to testify, criminal procedure and, specifically, Brady v. Maryland, have great potential to govern this difficult area of conduct. By using both First Amendment and criminal procedure doctrines to analyze the problem of police social media speech, the Article is able to shed new light on the problem and on possible solutions.

Among its core contributions, this Article argues: (1) There is a latent and irreconcilable tension between the First Amendment and criminal procedure paradigms for regulating officers’ speech. (2) Pseudonymous, private, and otherwise “hidden” speech presents a significant problem that is both ignored and exacerbated by the FirstAmendment paradigm. It can be addressed only by a criminal procedure approach to regulating police social media speech. (3) Police departments and prosecutors’ offices must start to proactively monitor their officers’ social media speech, as the failure to do so undermines officers’ free speech rights, defendants’ criminal procedure rights, and the public’s faith in the legitimacy of the police force.

So to Speak Podcast: Matt Taibbi, Nadine Strossen & Amna Khalid respond to ‘On the Media’ free speech critiques 

Last month, On the Media, a popular radio program from New York City’s WNYC, aired an episode that questioned free speech values and challenged so-called “free speech absolutism.”

In this episode of So to Speak: The Free Speech Podcast, we are joined by Matt Taibbi, Nadine Strossen, and Amna Khalid, who provide direct responses to many of the free speech critiques made in On the Media’s program.

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