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Flying Dog Brewery prevails again: First Amendment victory over North Carolina Alcoholic Board — FAN 341
“There are many prestigious frontline organizations that devote their full-time energy and resources to defending, protecting, and advocating for the First Amendment, the foundational freedom without which there would be no political, economic, or individual freedom. We are fortunate that those organizations exist because the First Amendment is under threat from all sides. As a small business, we are proud to stand with those defenders of the First Amendment and we unequivocally support and protect the freedoms it comprises.”
— Jim Caruso, CEO, Flying Dog Brewery (May 16)
When it comes to free speech, Jim Caruso is unflappable. He crafts fine beers and takes pride in it . . . but he also sees his business as a "First Amendment brewery." 27 years ago Colorado's Liquor Commission came after him for one of his labels — "Good Beer, No Shit" (see video clip here). His license or his liberty — he fought the law and he won. Then in 2009-10, the Michigan Liquor Control Commission refused to sell his "Raging Bitch" brew because of its "vulgar" name. He prevailed again.
Given all these free speech flaps, Caruso decided to launch a First Amendment Society — to that end, the society hosted a variety of speakers and book events and also continued to exercise, in robust ways, its First Amendment rights. True to that spirit, in 2017 Flying Dog terminated its Brewers Association membership in a controversy over free speech.
In 2021 Flying Dog launched its "Obscenity" brew, replete with a Lenny Bruce mug shot and a quote on the label by First Amendment lawyer Robert Corn-Revere who secured a posthumous pardon for the comedian.
"All of these battles are fought at the margin. That's where everything controversial is. By the time you're defending something mainstream, it's too late."
— Jim Caruso in Reason (Oct. 6, 2021)
Last year North Carolina's Alcoholic Beverage Control Commission said "no" to another one of his beer labels — "Freezin' Season." Why? Answer: The ABC board found the label to be "undignified, immodest, or in bad taste." The result: Sales of Freezin' Season were barred in North Carolina. So on August 26, 2021, Caruso took his First Amendment argument to federal court.
On May 13, the U.S. District Court for the Eastern District of North Carolina ruled in favor of Flying Dog Brewery. Judge Terrence W. Boyle thus granted the plaintiff's motion for summary judgment.
“The First Amendment is the last defense against authoritarian and arbitrary government, and it must be protected against any and all threats,” said Jim Caruso, CEO of Flying Dog Brewery. “We are hugely grateful to our attorney, Marc Randazza, whose knowledge and passion for the First Amendment carried the day. With the First Amendment seemingly under attack from all sides, it is heartening to see court decisions like this that protect the freedoms that it embodies.”
“This lawsuit is not just about selling beer. This regulation is so vague and unconstitutional, that Ralph Steadman, in his studio today, cannot know what he should create and not create for Flying Dog, lest the ABC deem it to be 'inappropriate' or 'undignified' or 'in bad taste.' This strikes at the heart of the First Amendment."
— Marc Randazza
- Plaintiff’s Complaint (Aug. 26, 2021)
- Plaintiff’s Motion for Preliminary Injunction (Aug. 26, 2021)
- Defendants’ Opposition to Motion for Preliminary Injunction (Sept. 8, 2021)
- Plaintiff’s Reply In Support Of Motion for Preliminary Injunction (Sept. 8, 2021)
- Daniel Croxall, "Arming Goliath: Independent Craft Beer Is in Jeopardy at the Intersection of a First Amendment Circuit Split, the Twenty-First Amendment, and the Erosion of Tied House Laws," Florida State University Law Review (2022)
Headline: "New 'disinformation' board paused amid free-speech questions"
This from Nomaan and Amanda Seitz with the Associated Press:
The Department of Homeland Security on May 18 paused a new and controversial board's work on disinformation and accepted the resignation of its leader, capping weeks of concerns about impinging on free-speech rights and frenzied conspiracy theories about the board itself.
Former Disinformation Governance Board director Nina Jankowicz told The Associated Press hours after resigning May 18 that a wave of attacks and violent threats she's fielded since the board's launch would not stop her from speaking out about disinformation campaigns pulsing through the social media feeds of Americans.
"We need to have a grown-up conversation about how to deal with threats to our national security and that's not what happened here," Jankowicz said. "I'm not going to be silenced."
What remains to be seen is how the board's disastrous rollout and ensuing criticism around it will damage ongoing U.S. efforts to counter disinformation used as a weapon by Russia and other adversaries. Secretary Alejandro Mayorkas acknowledged the board's controversy had become a distraction to the department's other work, which includes safeguarding U.S. elections, two officials familiar with his decision said.
NetChoice v. Paxton: Briefs are in — waiting
This from Ian Millhiser over at Vox:
The conservative United States Court of Appeals for the Fifth Circuit handed down a brief, unexplained order Wednesday evening that will throw the entire social media industry into turmoil if the Texas law at issue in this case is allowed to remain in effect. The decision in NetChoice v. Paxton reinstates an unconstitutional Texas law that seizes control of the major social media platforms’ content moderation process, requiring them to either carry content that those platforms do not wish to publish or be so restrictive it would render the platforms unusable. This law is unconstitutional because the First Amendment prohibits the government from ordering private companies or individuals to publish speech that they do not wish to be associated with.
After NetChoice filed its petition, Justice Samuel Alito requested a response briefing from the state of Texas.
→ The briefs in the case are listed and hyperlinked at SCOTUSblog.
Florida in a swirl of First Amendment challenges to state laws
- Curt Anderson, "11th Circuit: Fla. law on social media unconstitutional," Associated Press (May 24)
→ NetChoice v. Attorney General of Florida (11th Cir., 2022)
- Andrew Atterbury, "Florida wants to avoid critical race theory and ‘social justice’ in social studies texts," Politico (May 20)
- "First Amendment attorney weighs in on new Florida law banning protests at homes," News 4 JAX (May 21)
- Robert Corn-Revere, "Punishing Disney for opposing Florida’s “Don’t Say Gay” law poses serious First Amendment problems," FAN 336.1 (April 25)
Rohde on social media, Buffalo killings, & the First Amendment
- Stephen Rohde, "The Buffalo Killings, Social Media, and the First Amendment," LA Progressive (May 23)
Banning “The Great Replacement Theory” from Social Media Will Not Eliminate the Racist Ideology It Represents, But Exposing and Refuting It Will Help Advance Racial Justice
[. . .]
Unfortunately, in their well-meaning attempt to eliminate racial violence, many elected officials and others think the solution is to enact new laws at the federal and state level to ban “hate speech” and “racist speech” from Twitch, Twitter, Facebook, Discord, Instagram, and other social media platforms. In times of deadly crisis, people are quick to blame objectionable speech that traffics in hateful racist and bigoted ideas and spreads false and derogatory stereotypes of racial inferiority. But history teaches us that you cannot eliminate hateful ideas through censorship or by banning books, newspapers, movies, or today, social media. We know this from the cruel yet failed efforts of dictatorships, totalitarian regimes, and authoritarian organizations. The Inquisition, Nazi book burning, and the Gulag killed and tortured millions, but they did not eliminate heresy, Judaism, or the struggle for freedom and democracy. Censorship is a lazy and superficial effort that may provide the short-term appearance of addressing the problem of racism, sexism, hatred, and bigotry, but you can’t kill ideas. They will just spread elsewhere, turning up in other places and other forms.
Instead of driving hateful ideas underground to fester and gain new adherents, we need to expose, confront, and refute them. And we need to do it over and over, in every generation. Today, everyone reading this may believe that hateful ideas such a racial inferiority or Holocaust denial are no longer debatable and therefore are not discussed or written about. But every year new students arrive at school carrying myths and stereotypes they have learned at home, from friends, in school, in church, from popular entertainment, and, yes, on social media. Every civic institution and every person in authority needs to be equipped with the tools of persuasion, advocacy, and compassion to teach critical thinking. It was commonplace years ago to warn people “Don’t believe everything you read in the paper.” We need to make it commonplace for people not to believe everything they read on social media.
- Stephen Rohde, "The Endless Struggle Between Censorship and Free Speech," LA Review of Books (May 16) (reviewing "Free Speech: A History from Socrates to Social Media" by Jacob Mchangama)
Headline: "Responding to book censorship, Atwood auctions fireproof ‘Handmaid’s Tale’"
This from Jaclyn Peiser over at The Washington Post:
In a short video released Monday, Margaret Atwood’s face is lit only by the blue and purple fire blazing out of a flamethrower she’s holding in her arms. Her target is her own novel, the dystopian cultural phenomenon “The Handmaid’s Tale.” But the book doesn’t incinerate when the fire hits the cover — instead, the flames graze the edges, floating away with no wreckage left behind.
The book is fireproof.
The approximately one-minute video advertises a unique auction through Sotheby’s: a one-of-a-kind, unburnable copy of Atwood’s best-selling novel that critics say has become hauntingly more relevant in the decades since it was first published. All proceeds will go to PEN America, a nonprofit focused on free expression through literature.
The auction, first reported by the Associated Press, is a direct response to the growing number of book burnings and bans in schools and libraries, Atwood’s publisher, Penguin Random House, said on the promotional website unburnablebook.com.
Battle over book-banning in Virginia
- Kelsey Kendall, "Battle over books in Virginia Beach now targets Barnes & Noble, Amazon — and it’s making its way through circuit court," The Virginian-Pilot (May 19)
At the request of a congressional candidate, a Virginia Beach Circuit Court judge has found probable cause that two books that can be found in school libraries in the city are obscene. Now the candidate is asking the court to restrict access to the books in privately owned bookstores.
One is "Gender Queer: A Memoir" by Maia Kobabe, which the Virginia Beach Public School Board recently directed schools to remove from library shelves because of a similar determination. The other title is "A Court of Mist and Fury," by Sarah J. Maas.
According to an April 28 petition filed by Virginia Beach attorney and State Delegate Tim Anderson, both books can be found in school libraries. The petitioner is Tommy Altman, a Virginia Beach resident and a candidate for Republican nomination to run against U.S. Rep. Elaine Luria in the 2nd District.
Altman’s petitions indicate the titles are "sold and distributed in Hampton Roads through Barnes and Nobel (sic) and through Amazon with home delivery to Virginia Beach residents."
Following the circuit court’s Wednesday order to show cause issued by Judge Pamela Baskervill, Altman took to Twitter, describing the court’s finding as "a big step in the right direction." According to the order to show cause, the publishers for both books have 21 days to respond to the allegation that the contents are “obscene,” potentially to avoid a formal decision from the court on the matter. These publishers are Bloomsbury Publishing and Lion Forge LLC.
New book challenges ideas about freedom of speech and democracy
- Zac Gershberg & Sean Illing, "The Paradox of Democracy: Free Speech, Open Media, and Perilous Persuasion" (University of Chicago Press, June 16, 2022)
A thought-provoking history of communications that challenges ideas about freedom of speech and democracy.
At the heart of democracy lies a contradiction that cannot be resolved, one that has affected free societies since their advent: Though freedom of speech and media has always been a necessary condition of democracy, that very freedom is also its greatest threat. When new forms of communications arrive, they often bolster the practices of democratic politics. But the more accessible the media of a society, the more susceptible that society is to demagoguery, distraction, and spectacle. Tracing the history of media disruption and the various responses to it over time, Zac Gershberg and Sean Illing reveal how these changes have challenged democracy—often with unsettling effects.
The Paradox of Democracy captures the deep connection between communication and political culture, from the ancient art of rhetoric and the revolutionary role of newspapers to liberal broadcast media and the toxic misinformation of the digital public sphere. With clear-eyed analysis, Gershberg and Illing show that our contemporary debates over media, populism, and cancel culture are not too different from democratic cultural experiences of the past. As we grapple with a fast-changing, hyper-digital world, they prove democracy is always perched precipitously on a razor’s edge, now as ever before.
Lukianoff’s 2022 ‘book of the month’ recommendations
View The Eternally Radical Idea for more recommendations.
- May 2022 – The Status Game: On Social Position and How We Use It by Will Storr. In this excellent book, Storr combines research with gripping vignettes, data, and insights from the best thinkers. Storr argues persuasively that any attempt to “cure” the problem with social media that doesn’t take seriously the never-ending jockeying for status inherent in human nature is predestined to fail.
- April 2022 – I Never Thought of It That Way: How to Have Fearlessly Curious Conversations in Dangerously Divided Times by Mónica Guzmán. This book has indispensable advice for talking across lines of difference at a political moment that is most interested in setting everyone at odds.
- March 2022 – The Art of Insubordination: How to Dissent and Defy Effectively by Todd Kashdan. Todd’s book will change the way you think about institutions and progress. This book has excellent advice both for leaders on how to hear out fair critique and for those who want to challenge the status quo on how to effectively do so.
- February 2022 – Free Speech: A History from Socrates to Social Media by Jacob Mchangama. An important, thorough, and eminently readable history of free speech with many lessons of history worth reflecting on in the modern-day. There’s a reason all of us free speech nerds are so excited about this book!
- January 2022 – Deep Work: Rules for Focused Success in a Distracted World by Cal Newport. This book has effective strategies for dealing with distractions and devoting real attention to demanding tasks. I have found it extremely helpful, even if I can’t quite implement all his advice (would that I could quit social media…)
New scholarly article on First Amendment and facial recognition
- Katja Kukielski, "The First Amendment and Facial Recognition Technology," Loyola Los Angeles Law Review (2022)
YouTube: Brotman on Hefner's free speech and press legacy
- Daniel Lelchuk, "The Enduring Power of the First Amendment with Stuart Brotman," Talking Beats (April 21)
- Brian Kilmeade, "What Does Hugh Hefner Have To Do With This?," WABC (May 23)
More in the news
- Eugene Volokh, "Tennessee Court Expresses Doubt About Whether Anti-Libel Injunctions Are Allowed Under Tennessee Law," The Volokh Conspiracy (May 26)
- Evette Alexander, "As policy changes rattle high schools, Knight national survey shows students strongly support free speech," The Free Speech Center (May 25)
- Rob Miraldi, "Should hate speech be protected under 1st Amendment? Why change must be considered," Poughkeepsie Journal (May 25)
- Eugene Volokh, "Ohio Court of Appeals Adopts "Discovery Rule" in Libel Case Involving a Forged E-Mail," The Volokh Conspiracy (May 25)
- "High school students support ‘unpopular’ but not ‘offensive’ free speech, survey finds," The Washington Times (May 24)
- Lynn Greenky, "What many on the right get wrong about the First Amendment," The Washington Post (May 24)
- Ted Johnson, "Pete Williams, Longtime Correspondent Covering Supreme Court And Justice Department, To Depart NBC News In July," Deadline (May 19)
- Eugene Volokh, "Some More on Expert Witnesses in Libel Lawsuits," The Volokh Conspiracy (May 7)
- Rob Miraldi, "How democracy could flourish if Elon Musk gets Twitter takeover right," NorthJersey.com (May 6)
2021-2022 SCOTUS term: Free expression & related cases
- Federal Election Commission v. Ted Cruz for Senate (First Amendment claim affirmed)
- Shurtleff v. Boston (First Amendment claim affirmed)
- Houston Community College System v. Wilson (First Amendment claim denied)
- City of Austin, Texas v. Reagan National Advertising of Texas Inc. (First Amendment claim denied)
- City of Austin, Texas v. Reagan National Advertising of Texas Inc.
- Federal Election Commission v. Ted Cruz for Senate
- Shurtleff v. Boston
- Kennedy v. Bremerton School District
- 303 Creative LLC v. Elenis
- Romeril v. Securities and Exchange Commission
- Marshall v. Supreme Court of the State of New Mexico
- Smith v. United States
- American Society of Journalists v. Bonta
First Amendment related petitions
- Arlene’s Flowers Inc. v. Washington (petition for rehearing)
- Edgar et al. v. Haines
- Lundergan v. United States
- Clear Channel Outdoor, LLC v. Raymond
- City of Cincinnati v. Lamar Advantage Co.
- Kelly v. Animal Legal Defense Fund
- Green v. Pierce County
- Burns v. Town of Palm Beach
- Gilbert v. United States
- Roberson v. United States
- Woods v. Alaska State Employee Association
- Lamoureux v. Montana
- Asociación de Periodistas de Puerto Rico v. Commonwealth of Puerto Rico
- John K. MacIver Institute for Public Policy, Inc., et al. v. Evers
- Project Veritas Action Fund v. Rollins
- Troesch v. Chicago Teachers Union, et al.
- Dignity Health v. Minton
- Pace v. Baker-White
- Tah v. Global Witness Publishing, Inc.
- American Civil Liberties Union v. U.S.
- Frasier v. Evans (First Amendment and qualified immunity)
- Louisiana v. Hill
- Baisley v. International Association of Machinists and Aerospace Worker
- Crowe v. Oregon State Bar
- Boardman v. Inslee
- Pasadena Republican Club v. Western Justice Center, et al.
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