Table of Contents

A ‘must read’: Barron and Dienes release new edition of ‘First Amendment Law in a Nutshell’ — First Amendment News 356

This ‘nutshell’ proves its worth time and again for practitioners, professors, and law students . . . and it is certainly a book that should be at the fingertips of every college administrator facing free speech firestorms.
First Amendment News

The original “First Amendment Law in a Nutshell” was released in 1993. That first edition proved to be an informative guide to a body of law then struggling to make sense of cases such as R. A. V. v. City of St. Paul (1992) and Lee v. Weisman (1992), which, given the division on the Court, were muddying the conceptual waters of First Amendment law. Now in its sixth triumphant edition, this book is more needed and instructional than ever, bringing clarity and insight to its small-framed pages. A vast amount of knowledge and impressive scholarship (e.g., here and here) is brought to this project by its authors, Jerome Barron and his late colleague and co-author C. Thomas Dienes.

If it is indeed fair to tag Barron’s and Dienes’s work product a “nutshell,” it must be a huge nutshell. Simply consider: 

  • The text spans 629 pages.
  • The index spans 43 pages.
  • The table of cases spans 11 pages.
Prof. Jerome A. Barron
Prof. Jerome A. Barron

An essential guide to First Amendment law

On so many fronts, this “nutshell” proves its worth time and again for practitioners, professors and  law students — and it is certainly a book that should be at the fingertips of college administrators facing free speech firestorms. The following three areas indicate its mind-opening value:

  1. One area of “pervasive importance,” as the authors correctly put it, is that of content-based regulations, to which 21 pages are devoted starting with NAACP v. Alabama (1958) and going up to City of Austin v. Reagan National Advertising of Austin (2022) with an ample and illuminating discussion of Reed v. Town of Gilbert (2015).
  2. After guiding their readers through 24 pages of a hodgepodge of public forum cases, Barron and Dienes duly note that “public forum analysis in the Supreme Court at this point has become a jurisprudence of labels.” Indeed! And yet, labels matter. Thus, the authors usefully inform their readers how any given public forum case might be labeled, even if precedent points to where logic does not.
  3. Another thorny area of First Amendment law is government-sponsored environments, to which some 70 pages are devoted. With precision, the authors untangle the law of student speech, government employment, and subsidized speech — though they note that sometimes a “continuum” sort of analysis must suffice given that there is “no sharply marked line” of doctrinal demarcation.

And yes, the 117 pages devoted to freedom of religion are equally, if not more, remarkable in helping lawyers and law students navigate the sometimes confusing waters of this difficult area of First Amendment law.

SCOTUS allows Jan. 6 committee to obtain phone records

Amy Howe
Amy Howe

The Supreme Court on Monday cleared the way for a cellphone provider to turn over call records for Dr. Kelli Ward, the chair of the Arizona Republican Party, to the committee investigating the Jan. 6, 2021, attack on the U.S. Capitol.

Ward had asked the justices to block a subpoena addressed to T-Mobile, arguing that there “could hardly be a starker example of seeking to punish people for having ties to political views regarding the outcome of the 2020 presidential election that many Americans regard as ‘dissident.’” But the committee countered that Ward had “aided a coup attempt,” and on Monday the justices turned down Ward’s request.

Justices Clarence Thomas and Samuel Alito indicated that they would have granted Ward’s request.

Presidential candidate Trump proposes ban on taxpayer funding of campaigns

Trump . . . announced plans to change legislation regarding campaign funding. He said he will ask for a permanent ban on taxpayer funding of campaigns and a lifetime ban on lobbying by former members of Congress and cabinet members.

Fifth Circuit upholds conviction for publication of obscene stories and drawings

A jury convicted Defendant of three counts of producing, distributing, receiving, and possessing an obscene visual depiction of a minor engaged in sexually explicit conduct, in violation of 18 U.S.C. Section 1466A(a)(1); five counts of using an interactive computer service to transport obscene matters, in violation of 18 U.S.C. Section 1462(a); and one count of engaging in the business of selling or transferring obscene matters, in violation of 18 U.S.C. Section 1466(a). On appeal, Defendant challenged his conviction and sentence.

The Fifth Circuit affirmed convictions on Counts 2 through 9, reversed the conviction on Count 1, and remanded for resentencing. The court explained that the fact that the charged drawings here do not depict real minors does not render Arthur’s convictions on Counts 1, 8, and 9 unconstitutional. However, as to Count 1, the court wrote it was not satisfied that the charged image, which was admitted at trial as Government’s Exhibit 10A, is ‘patently offensive.’

Knight First Amendment Institute: Call for papers on ‘Algorithmic Amplification and Society’

Knight-First-Amendment-Institute

The Knight First Amendment Institute invites submissions for its spring symposium, “Optimizing for What? Algorithmic Amplification and Society,” to be held at Columbia University on April 27-28, 2023. A discussion of the theme of the symposium is below, followed by logistical information for those who wish to participate.

Why This Symposium? Why Now?

Most online speech today is hosted on algorithmic platforms that are designed to optimize for engagement. Speech of every conceivable kind is carried by platforms, including entertainment, news, politics, social movements, educational content, public health information, scholarship, religious content, sports, cultural products such as music and art, and other commercial content about travel, restaurants, shopping, jobs, and more.

Algorithms are not neutral. Compared to non algorithmic systems (such as a chronological feed), they amplify some speech and suppress others. Platforms are “complex systems,” so amplification is an emergent and hard-to-predict effect of interactions between design and human behavior. Platform companies themselves have repeatedly failed to anticipate the effects of algorithm or design changes. Independent research is stymied both by the inherent difficulty of studying complex systems and the lack of transparency by platform companies.

Prof. Arvind Narayanan
Prof. Arvind Narayanan

The logic of engagement optimization, while arguably well suited for entertainment, has come to profoundly reshape the distribution of other kinds of speech. Some effects are positive, such as the decreased power of gatekeepers in identifying new talent. On the other hand, algorithmic amplification and suppression exert a pervasive distorting effect on everything ranging from the production and dissemination of science to the restaurant market. Each domain has its own notion of quality, refined over decades or centuries, but platform logic rewards unrelated factors. The algorithm-savvy are able to exploit the reach of platforms for their own purposes, while entities traditionally entrusted with information dissemination, such as public health agencies, are struggling to adapt to the new media environment.

This is an urgent topic. Platform companies are facing enormous competitive pressure to make algorithms even more central to their operation, the so-called “Tiktokification of everything.” Algorithms are playing a bigger role in content moderation, including through nontransparent methods such as downranking. 

This symposium will bring together technologists with journalists, legal scholars, sociologists, psychologists, and others. It has two main goals: 1) to further the understanding of algorithmic amplification and distortion, and 2) to explore interventions; whether platforms changing their algorithms and design, or institutions and individuals adapting to algorithm-mediated information propagation.

Katy Glenn Bass
Katy Glenn Bass

Logistics, Dates, and Deadlines

The symposium will take place over two days. The first day, April 27, 2023, will consist of a private workshop at which authors of submitted papers will be invited to discuss and improve their papers. There will be a dinner for participants in the evening. The second day, April 28, 2023, will be a public event at Columbia University, open for both in-person and online attendance. It will offer a series of discussions on algorithmic amplification, featuring both those authors who have submitted new work for this symposium and those scholars presenting on recently published papers.

Submissions

If you are interested in workshopping a paper, please send us a 250-word abstract of your paper by January 3, 2023. Please submit the abstract to Katy Glenn Bass at katy.glennbass@knightcolumbia.org. We intend to review all of the abstracts by January 15, 2023, with the goal of commissioning 6-12 papers.

Draft papers will be due April 17, 2023. For analytical papers, such as legal scholarship, we encourage you to keep papers short (5,000 words) but we will consider proposals for longer pieces as well. For empirical papers, work in progress is welcome, anywhere from a formal research plan to a paper in submission. We will circulate these drafts to all participants of the private workshop in advance of the symposium, which will take place on April 27-28, 2023, at Columbia University. Revised drafts will be due after the symposium. Final papers will be published on the Knight Institute’s website, and authors are free to pursue subsequent publication in a journal. Each author will receive an honorarium of $6,000 (divided between co-authors as needed). The Knight Institute will cover participants’ travel and hotel expenses.

Related

In every era of communications technology — whether print, radio, television, or Internet — some form of government censorship follows to regulate the medium and its messages. Today we are seeing the phenomenon of 'machine speech' enhanced by the development of sophisticated artificial intelligence.

Ronald K. L. Collins and David M. Skover argue that the First Amendment must provide some defenses and justifications for covering and sometimes protecting robotic expression. It is irrelevant that a robot is not human and cannot have intentions; what matters is that a human experiences robotic speech as meaningful. This is the constitutional recognition of 'intentionless free speech' at the interface of the robot and receiver. Robotica is the first book to develop the legal arguments for these purposes. Aimed at law and communication scholars, lawyers, and free speech activists, this work explores important new problems and solutions at the interface of law and technology.

Forthcoming book: ‘You Can’t Joke About That’

Kat Timpf, “You Can't Joke About That: Why Everything is Funny, Nothing is Sacred, and We're All in This Together” (Broadside Books, April 25, 2023)

Kat Timpf
Kat Timpf

Many of the funniest lines you’ve ever heard were off-the-cuff. And now, the woke mob wants to end that.

Politically correct progressives and social justice warriors have attacked comedians who dare offend them and try to silence them. This is a curtailment of free speech—and humor. In You Can’t Joke About That, Kat Timpf says the quiet part out loud: Comedy isn’t about appeasing the woke gods or sending a political message; it’s about gasp making people laugh.

In her unique, funny voice, Kat shows how many on the left have no sense of humor—and are killing American comedy. She also shares insights from her diverse life experiences and achievements—being homeless, offending Star Wars fans, doing comedy on live television while wearing a colostomy bag, and getting dumped by her boyfriend on an outing with her dad to Coney Island.

Thoroughly researched and refreshingly honest, You Can’t Joke About That is the book conservatives have wanted to take down Cancel Culture with humor and get America laughing again.

Related

Two forthcoming books on book bans

Stifled Laughter book cover

Part memoir, part courtroom drama, part primer for fighting assaults on free speech, Stifled Laughter, the revised edition, is the story of one woman's efforts to restore literary classics to the classrooms of rural north Florida. In 2021, 1,500 books were banned in the United States. More than any other year previously recorded.

Johnson's honest, often hilarious, first-person account of censorship in its modern form provides valuable insight into why what our children read at school remains a controversial issue, and why free speech in America remains a precarious right. For anyone who has ever wondered just how far the religious right will go in limiting free expression, this book proves once again that the personal is political. Parents and teachers, writers and readers—all will benefit from Johnson's experience and all will be touched by her spirit.

Book bans and challenges frequently make the news, but when the reporting ends, how do we put them in context? The Fight against Book Bans captures the views of dozens of librarians and library science professors regarding the recent flood of book challenges across the United States, gathered in a comprehensive analysis of their impact and significance. It also serves as a guide to responding to challenges.

Chapter authors provide first-hand accounts of facing book challenges and describe how they have prepared for challenges, overcome opposition to certain books, and shown the value of specific library materials. Library science faculty with a range of specialties provide relevant background information to bolster these on-the-ground views. Together, the chapters both articulate the importance of intellectual freedom and demonstrate how to convey that significance to others in the community with passion and wisdom. This volume provides a timely and thorough overview of the complex issues surrounding the ongoing spate of book challenges faced by public and school libraries.

New scholarly article on ‘public knowledge producers’

Prof. Heidi Kitrosser
Prof. Heidi Kitrosser

In this Essay, I consider the crucial role played by “public knowledge producers” in a healthy democratic system, current threats to public knowledge production in the United States, and doctrinal tools to protect it. I define public knowledge producers as publicly funded individuals or entities whose ordinary professional responsibilities include knowledge production or dissemination, according to disciplinary norms. This definition is similar to Vicki Jackson’s definition of “public knowledge institutions,” but with some differences that I explain in the Essay. Public knowledge producers are essential to a functioning democracy, helping to foster a shared epistemic base, critical thinking skills, and government accountability. Yet their integrity – specifically, their ability to operate with some independence from partisan politics – is threatened by legal, cultural, and political events.

On the legal front, developments in both First Amendment law and separation of powers law bode poorly for public knowledge producers’ political independence. These developments include the growing influence of government speech doctrine and unitary executive theory. These legal phenomena parallel, and share a populist bent with cultural and political developments that similarly threaten public knowledge production, including right-wing attacks on “the deep state” and ongoing campaigns against instruction touching on race and gender in public schools. Finally, I turn to counter-forces in First Amendment and separation of powers law that can be marshaled to staunch the damage done by government speech doctrine and unitary executive theory, and to combat efforts to decimate public knowledge production in the United States.

New scholarly article: The case against NYT v. Sullivan

I. The Sullivan Story

II. The Sullivan Court’s Thesis

III. The Conservative Critique

IV. The Liberal Critique

V. Assessing the Critiques

VI. Flaws in Defenses of the Actual Malice Rule

  1. Speakers Willing and Able to Use Reasonable Care
  2. Speakers Possibly Unable to Use Reasonable Care
  3. Speakers Maximizing Partisan Influence
  4. Harm to Public Discourse

VII. Time for a Change?

YouTube: Alice Dreger on free speech and higher education

The Jepson Leadership Forum presents Alice Dreger, journalist, historian, and author of “Galileo’s Middle Finger: Heretics, Activists, and the Search for Justice in Science,” a New York Times Book Review editors' choice, for a discussion on "Free Speech and Open Inquiry in Higher Education." The 2022-23 Jepson Leadership Forum focuses on past and present failures in leadership and followership by shining a spotlight on times where we could – and should – have done better. We invite scholars, experts, and activists to reflect on what went wrong in the U.S. withdrawal from Afghanistan, climate change, the U.S. COVID-19 response, historical memory and racism, and higher education crises — and how to do better going forward.

More in the news

2022-2023 SCOTUS term: Free expression and related cases

Review granted 

Pending petitions

State action

Qualified immunity

Liability under Anti-Terrorism Act

Section 230 immunity

Review denied

Last FAN

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.

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