After almost six decades of existing as settled law, the reign of New York Times, Inc. v. Sullivan (1964) is under attack on several fronts. Justices Clarence Thomas and Neil Gorsuch, for example, have targeted the ruling and its progeny. More recently, former President Donald Trump asked the federal courts to reconsider the landmark First Amendment ruling in connection with his defamation suit against CNN. Meanwhile, Fox News and others are busy litigating a $2.7 billion defamation lawsuit against them brought by Smartmatic (see Adam Klasfeld, “Fox News loses appeal of Smartmatic defamation suit, claims against Rudy Giuliani and Jeanine Pirro revived”). Then there is Florida Governor Ron DeSantis’s ploy to roll back the historic ruling (see here also).
As First Amendment lawyer Floyd Abrams recently told New York Times reporter Ken Bensinger, there is “a growing sense in the conservative community that this is their day to set aside New York Times v. Sullivan.”
Against that backdrop comes a Florida bill (HB 951) that seeks to return defamation law to being a “purely” state matter. As reported by Colin Kalmbacher in Law and Crime, the bill “was filed in the Florida State House by Rep. Alex Andrade of Pensacola.” In that article, Mr. Abrams is quoted as saying:
It’s black-letter law that a state cannot constitutionally provide less protection in libel litigation than the First Amendment requires. This text does just that, obviously intentionally. If Governor DeSantis, a Harvard Law graduate, thinks the statute is constitutional he’s forgotten what he was taught . . . If he’s looking for a way to offer the Supreme Court a case in which it might reconsider settled law, who knows. But what’s clear is that it is today and tomorrow facially at odds with the First Amendment.
Related: Matthew Schafer on Sullivan
- Matthew L. Schafer and Jeff Kosseff, “Protecting Free Speech in a Post-Sullivan World,” Federal Communications Law Journal (2022)
- Matthew Schafer, “New York Times v. Sullivan and the Forgotten Session of the US Supreme Court,” Medium (April 21, 2022)
- “Contra-Justice Thomas, the originalist debate continues — a review of Wendell Bird's ‘Criminal Dissent’,” FAN 277 (Nov. 11, 2020) (reviewed by Matthew L. Schafer)
- “More on originalism and the First Amendment, enter Matthew Schafer,” FAN 274 (Oct. 7, 2020)
SCOTUS denies review in boycotts of Israel case
The case is Arkansas Times v. Waldrip. The issue raised in it is whether a state law requiring government contractors to certify that they are not participating in, and will not participate in, boycotts of Israel or Israel-controlled territories is consistent with NAACP v. Claiborne Hardware Co. and the First Amendment’s central prohibition against content and viewpoint discrimination.
- Eugene Volokh, “S. Ct. Denies Review of Eighth Circuit En Banc Case Upholding Arkansas ‘Anti-BDS" Statute’,” The Volokh Conspiracy (Feb. 21)
Section 230 case argued in Supreme Court
- Brian Fung and Tierney Sneed, “Takeaways from the Supreme Court’s hearing in blockbuster internet speech case,” CNN (Feb. 21)
Supreme Court justices appeared broadly concerned Tuesday about the potential unintended consequences of allowing websites to be sued for their automatic recommendations of user content, highlighting the challenges facing attorneys who want to hold Google accountable for suggesting YouTube videos created by terrorist groups.
For nearly three hours on Tuesday, the nine justices peppered attorneys representing Google, the US government and the family of Nohemi Gonzalez, an American student killed in a 2015 ISIS attack, with questions about how the court could design a ruling that exposes harmful content recommendations to liability while still protecting innocuous ones.”
- Justices are worried about lawsuits and disruption to the internet: A big concern of the justices seems to be the waves of lawsuits that could happen if the court rules against Google.
- Plaintiffs struggle to draw a line between recommendations of harmful vs. non-harmful content: Multiple justices pushed Schnapper to clarify how the court should treat recommendation algorithms if the same algorithm that promotes an ISIS video to someone interested in terrorism might be just as likely to recommend a pilaf recipe to someone interested in cooking.
- Barrett raises legal threat to individual users for retweets: One of the few justices focusing on how changes to Section 230 could affect individual internet users was Justice Amy Coney Barrett, who repeatedly asked whether narrowing the law in the ways Schnapper has proposed could put average social media users in legal jeopardy.
- Specter of defamation litigation plays a big role in arguments: Tech law experts say an onslaught of defamation litigation is the real threat if Section 230’s protections are weakened and the justices seemed to agree, posing several questions and hypothetical that turned on defamation claims.
- Dispute over Section 230’s role in the rise of the internet: Though Google’s attorney, Lisa Blatt, did not get the tough grilling that Schnapper and Stewart received, some justices hinted at some discomfort with how broadly Section 230 has been interpreted by the courts.
- Barrett points to a potential exit ramp: Barrett referenced an exit ramp the Supreme Court has that would allow it to avoid the big legal question over the scope of Section 230.
- She pointed to the tech case the court will hear Wednesday, in which the justices will consider whether an anti-terrorism law covers internet platforms for their failure to adequate remove terrorism-related conduct. The same law is being used by the plaintiffs to sue Google in Tuesday’s case.
- ‘So if you lose tomorrow, do we even have to reach the Section 230 question here? Would you concede that you would lose on that ground here?’ Barrett asked Schnapper.
- What happens Wednesday As Barrett mentioned, there’s another big tech case on the Supreme Court’s docket Wednesday. The case, Twitter v. Taamneh, is not about Section 230 directly. Instead, the justices are considering whether social media companies can be sued for aiding and abetting an act of international terrorism after hosting content that generally expressed support for ISIS but that did not refer to a specific act of terror
Other news coverage
- Adam Liptak, “Supreme Court Frustrated and Wary Over Legal Shield for Tech Companies,” The New York Times (Feb. 21)
The justices seemed to view the positions taken by the two sides as too extreme and expressed doubts about their own competence to find a middle ground.
- Josh Goldstein and Rebecca Kern, “Google appears to dodge disaster as justices review tech law,” Politico (Feb. 21)
Despite widespread fear in the tech community about such a blow, a majority of the justices during oral arguments Tuesday seemed reluctant to upend almost three decades of legal precedent that has effectively immunized search engines and social media companies from liability
- Jess Bravin, “Supreme Court Justices Express Skepticism at Holding Google Liable for Content,” Wall Street Journal (Feb. 21)
Supreme Court justices reacted skeptically Tuesday to claims that YouTube parent Google LLC could be sued for algorithms that automatically recommended extremist recruiting videos, in the first session of a two-day round of arguments testing the liability of internet providers for material posted online.
- Barbara Ortutay, “What is Section 230, the rule that made the modern internet?,” Associated Press (Feb. 21)
- Susanna Granieri, “Electronic Frontier Foundation’s David Greene Weighs In on Section 230 and Online Speech,” First Amendment Watch (Feb. 17)
- Josh Fishman, “Section 230 is On Trial. Here's What You Need to Know,” Electronic Frontier Foundation (Feb. 16)
Sanitizing Roald Dahl — FIRE takes on ‘sensitivity readers’
- Angel Eduardo, “VIDEO: Roald Dahl's classic books altered by publisher Puffin,” FIRE (Feb. 21)
Roald Dahl is one of the most successful and beloved writers who has ever lived. His works have sold over 250,000,000 copies in more than 60 languages and “Charlie and the Chocolate Factory,” “James and the Giant Peach,” and “Matilda” are among the most delightful and memorable children’s books ever written. You have probably read his words, seen movies based on his books, or even seen his work live on Broadway.
Which is why the news that his publisher called in “sensitivity readers” to slash and rewrite his work to impose “relevancy” is just so profoundly sad and reprehensible.
Puffin Books, Dahl’s publisher, has the right to do this. Dahl’s estate has the right to allow it. And you have the right to tell them they are wrong, and to ask them to change their mind. As the video below shows, you will be in excellent company.
Not just because the revisions dull the work. Not just because this implies that every book can (and should?) read like it was written by a committee. Not just because these “relevant” books will prevent kids from having their own thoughts on how the world has changed. Not just because they bring us closer to a world where any comedic or dramatic elements that might offend *anyone* are forbidden. And not just because they imply that no book is ever finished, no author is safe from the rewrites of some future censor, and no reader can be trusted with a troublesome word or phrase.
But also because Puffin Books needs to live up to its mission “to create a world where independent thinking, free expression, and creativity flourish.”
Forthcoming book: Lukianoff and Schlott on cancel culture — and a solution
- Greg Lukianoff and Rikki Schlott, “The Canceling of the American Mind: Cancel Culture Undermines Trust, Destroys Institutions, and Threatens Us All―But There is a Solution” (Simon & Schuster, Oct. 17)
“A timely deep dive into cancel culture, an account of its dangers to all Americans, and the much-needed antidote from the team that brought you ‘Coddling of the American Mind’.”
Cancel culture is a new phenomenon, and The Canceling of the American Mind is the first book to codify it and survey its effects. From the team that brought you the bestselling Coddling of the American Mind comes hard data and research on what cancel culture is and how it works, along with hundreds of new examples showing the left and the right both working to silence their enemies.
The Canceling of the American Mind will change how you view cancel culture. Rather than a moral panic, we should consider it a dysfunctional part of how Americans battle for power, status, and dominance. Cancel culture is just one symptom of a much larger problem: the use of cheap rhetorical tactics to “win” arguments without actually winning arguments. After all, why bother refuting your opponent when you can just take away their platform or career?
The good news is that we can beat back this threat to democracy through better citizenship. The Canceling of the American Mind offers concrete steps toward reclaiming a free speech culture, with materials specifically tailored for parents, teachers, business leaders, and everyone who uses social media. We can all show intellectual humility and promote the essential American principles of individuality, resilience, and open-mindedness.
- Dennis Hetzel, “N.C. school district takes 41 books off shelves ‘for review’,” The Free Speech Center (Feb. 20)
New book on Elijah Lovejoy and the fight for a free press
Ken Ellingwood, “First to Fall: Elijah Lovejoy and the Fight for a Free Press in the Age of Slavery” (Pegasus Books, Jan. 2023)
“A vividly told tale of a forgotten American hero — an impassioned newsman who fought for the right to speak out against slavery.”
The history of the fight for free press has never been more vital in our own time, when journalists are targeted as “enemies of the people.” In this brilliant and rigorously researched history, award-winning journalist and author Ken Ellingwood animates the life and times of abolitionist newspaper editor Elijah Lovejoy.
First to Fall illuminates this flawed yet heroic figure who made the ultimate sacrifice while fighting for free press rights in a time when the First Amendment offered little protection for those who dared to critique America’s “peculiar institution.”
Culminating in Lovejoy’s dramatic clashes with the pro-slavery mob in Alton, Illinois — who were destroying printing press after printing press — First to Fall will bring Lovejoy, his supporters and his enemies to life during the raucous 1830s at the edge of slave country. It was a bloody period of innovation, conflict, violent politics, and painful soul-searching over pivotal issues of morality and justice.
In the tradition of books like The Arc of Justice, First to Fall elevates a compelling, socially urgent narrative that has never received the attention it deserves. The book will aim to do no less than rescue Lovejoy from the footnotes of history and restore him as a martyr whose death was not only a catalyst for widespread abolitionist action, but also inaugurated the movement toward the free press protections we cherish so dearly today.
Soon-to-be-released book on minorities, free speech, and the internet
- Oscar Pérez de la Fuente, Alexander Tsesis, and Jędrzej Skrzypczak, eds., “Minorities, Free Speech and the Internet,” (Routledge, March 9)
“Minorities, Free Speech, and the Internet explores the regulation of free speech online and offline.”
Views are divided as to how much regulation of the Internet is appropriate. Some argue that it should be an unregulated space for free content. On the other hand, in many democracies, online hate speech, harassment, and xenophobia are prohibited and punished. This book provides a forum for leading international scholars to address the domestic and comparative dimensions of this complex legal conundrum. Firstly, the authors analyze the free speech and internet regulations in different legal cultures, including the USA, Europe, China and Russia. Secondly, they study fake news, extreme right speech, and the implications of hate speech in pluralistic society. Thirdly, they examine different case law addressing minority sensibilities, historical discriminations, offensive propaganda, and other issues particularly concerning minorities and free speech.
This book will be of interest to students and scholars interested in the topics of hate speech and minorities, democracy, misinformation, and debates about the Internet, as well as political science researchers.
New book on the history of free speech in Britain: 1500-1850
- Robert Ingram, Jason Peacey, and Alex W. Barber, eds., “Freedom of speech, 1500-1850 (Politics, Culture and Society in Early Modern Britain),” Manchester University Press (2022)
This collection brings together historians, political theorists and literary scholars to provide historical perspectives on the modern debate over freedom of speech, particularly the question of whether limitations might be necessary given religious pluralism and concerns about hate speech. It integrates religion into the history of free speech and rethinks what is sometimes regarded as a coherent tradition of more or less absolutist justifications for free expression.
Contributors examine the aims and effectiveness of government policies, the sometimes contingent ways in which freedom of speech became a reality and a wide range of canonical and non-canonical texts in which contemporaries outlined their ideas and ideals. Overall, the book argues that while the period from 1500 to 1850 witnessed considerable change in terms of both ideas and practices, these were more or less distinct from those that characterize modern debates.
This book presents historical reappraisals of freedom of speech and freedom of the press in the early modern Anglophone world. Prompted by modern debates about whether limitations on free expression might be necessary given religious pluralism and concerns about hate speech, it brings together historians, political theorists and literary scholars, offering a longue durée approach to the topic.
The book integrates religion into the history of free speech and rethinks what is sometimes regarded as a coherent tradition of more-or-less absolutist justifications for free expression. Contributors examine the aims and effectiveness of government policies, the sometimes messy and contingent ways in which freedom of speech became a reality, and a wide range of canonical and non-canonical texts in which contemporaries outlined their ideas and ideals. They show that — on this issue at least — the period from 1500 to 1850 is a coherent one, in terms of how successive governments reflected on the possibility of regulation, and of the kinds of claims that were and were not made for freedom of speech. While not denying that changes can be detected, in both ideas and practices, the book demonstrates that the issues, arguments and aims involved were more or less distinct from those that characterize modern debates.
Freedom of speech, 1500-1850 will appeal to religious and political historians, intellectual historians and literary scholars, as well as anyone interested in the history of one of the most important and thorny issues in modern society.
New book on tech wars and free speech
- Ken Buck, “Crushed: Big Tech's War on Free Speech,” (foreword by Senator Ted Cruz) Humanix Books (Jan. 2023)
“No one — conservative or liberal — should be comfortable with a few Silicon Valley oligarchs having a monopoly over the marketplace of ideas, and with it, democracy itself.” — Senator Ted Cruz
When the Founding Fathers drafted our Constitution, they had no idea there would be a “Big Tech” — nor any concept of the immense power these companies would wield over our people. But the Fathers did provide mechanisms — a system of check and balances — for the people to stop dangerous monopolies like Google, Facebook, Apple, and Amazon from suffocating our business and political life. Few know more about these mechanisms than Rep. Ken Buck, who has been a leader in Congress fighting against the unchecked power of Big Tech.
In CRUSHED: Big Tech’s War on Free Speech, Buck exposes the bullying and predatory behavior from the Big Tech giants who have used their technologies and their unbelievable market shares to stifle commerce and censor free speech. He spells out the inside details of how these companies restrict free markets, stop competition, increase prices, and ultimately hurt consumers. Even worse, Big Tech companies like Google, Twitter, and Facebook are actively censoring conservative news and views, as they openly manipulate information provided to voters. Ken Buck shows how these tech giants are true monopolies and their concentrated power pose a serious danger for our democracy.
In contrast to the robber barons of the Gilded Age who simply posed a threat to commerce, Big Tech threatens the very core of our political system. They control the flow of information shared with the public for their own financial and political gain. In CRUSHED, Ken Buck argues that while Americans are under siege by Big Tech, we are not destroyed. We can still take on Big tech, fight back and even win. The future of our nation depends on it, he says.”
YouTube: Randy J. Downey interviews Tom Morello (Rage Against the Machine) on free speech
- “Free Speech + Other Dirty Words: Tom Morello (Rage Against the Machine),” FIRE and Spin (Feb. 21)
“I think there’s only two positions on freedom of speech: You’re for it or you’re against it.” As the lead guitarist for legendary bands like Rage Against the Machine, Audioslave, and Prophets of Rage, Tom Morello pushes the boundaries of what is possible with a guitar, blending rock, metal, punk, and hip-hop into a unique and captivating sound. But it's not just Morello's musical talent that earns him a place in the pantheon of musical greats — he's also a passionate advocate for free speech.
Free Speech + Other Dirty Words” is a partnership between the Foundation for Individual Rights and Expression (FIRE) and SPIN to showcase iconic artists sharing their stories about freedom of speech, self-expression, and the barriers they crossed to avoid censorship.
- Eugene Volokh, “No First Amendment Problem with Searching Records of E-Mail Account ‘PedoZack82@gmail.com’,” The Volokh Conspiracy (Feb. 21)
- Joe Silverstein, “‘Respect pronouns’ bill at University of Houston challenged on First Amendment grounds,” Fox News (Feb. 20)
- Ilya Somin, “Fox News 2020 Election Coverage Decisions Demonstrate that Demand for Misinformation is a Bigger Problem than the Supply,” The Volokh Conspiracy (Feb. 20)
- Susanna Granieri, “Fox News Hosts Didn’t Appear to Believe 2020 Election Fraud Claims, a Newly Released Filing Shows,” First Amendment Watch (Feb. 17)
- “Testimony of Bradley A. Smith Before the Kansas House of Representatives Committee on Elections,” Institute for Free Speech (Feb. 17)
- 303 Creative LLC v. Elenis (argued Dec. 5)
- Jack Daniel’s Properties, Inc. v. VIP Products LLC (argued March 22)
- United States v. Hansen (to be argued, March 27) (Volokh commentary here)
- Counterman v. Colorado (to be argued April 19)
- Vidal v. Elster
- Keister v. Bell
- O’Connor-Ratcliff v. Garnier
- U.S. v. Hernandez-Calvillo
- Price v. Garland
- Moody v. NetChoice, LLC
- NetChoice, LLC v. Moody
- Florida v. NetChoice
- Klein v. Oregon Bureau of Labor and Industries
- Novak v. City of Parma (cert. denied)
Immunity under Foreign Sovereign Immunities Act
- NSO Group Technologies Limited v. WhatsApp Inc. (cert. denied)
Liability Anti-Terrorism Act
- Twitter v. Taamneh (argued Feb. 22)
Section 230 immunity
- Gonzalez v. Google (argued Feb. 21)
- Novak v. City of Parma
- Soto v. Texas
- Moore v. Texas
- Chen v. Texas
- Barton v. Texas
- Arkansas Times v. Waldrip
- My Pillow v. U.S. Dominion (news story)
- Kowall v. Benson
- Tofsrud v. Spokane Police Department
- Swanson v. Griffin County
This article is part of First Amendment News, an editorially independent publication edited by professor Ronald K. L. Collins and hosted by FIRE as part of our mission to educate the public about First Amendment issues. The opinions expressed are those of the article’s author(s) and may not reflect the opinions of FIRE or of professor Collins.