“They have taken away all First Amendment Rights. THIS IS NOT AMERICA!”
So complained Donald Trump after a New York jury ordered him to pay $83.3 million for defaming E. Jean Carroll.
“In so many different respects,” I surmised last year, “it is hard to think of any other single person whose actions have had such a significant effect on the public and courts’ view of law and of the First Amendment.”
That is even more apparent now given the latest judgment against the former president. Apart from his lawyer, Alina Habba — who declared that they would “immediately” appeal the verdict — few, if any, of the titans of First Amendment law have come to Trump’s free speech defense (By the way: Recall that it was Ms. Habba who unsuccessfully represented Trump in his bid to sue The New York Times and three of its reporters for alleged defamation).
Meanwhile, back in the bloody waters, the defamation feeding frenzy continues. Simply consider the $148 million verdict in a defamation action brought by two former Georgia election workers against Rudy Giuliani. Here too, no First Amendment experts have come to Rudy’s defense. And “America’s mayor” (who now pleads he is bankrupt and is seeking “unpaid legal fees” from Trump) stands to owe even more if he loses defamation cases brought by Smartmatic and Dominion. To make matters worse still, Giuliani’s PAC defense fund has not been able to raise even a million dollars . . . leaving him at least $147 million short.
Speaking of Smartmatic, its defamation suit against Fox News and its anchors Lou Dobbs, Jeanine Pirro, and Maria Bartiromo has yet to be settled. As AP News reports, last week a judge refused “to toss out Fox News’ claims that voting technology company Smartmatic is suing the network to suppress free speech. The ruling means that both Smartmatic’s multibillion-dollar defamation lawsuit and the network’s counterclaims can continue toward an eventual trial.”
Alas, Dominion’s $1.6 billion defamation suit against Newsmax is set for this September, which means that “barring an out-of-court settlement, [the case] will be front and center at a four-week trial during the closing weeks of the 2024 election.” Notably, last December Dominion won access to Newsmax journalists’ personal communications and text messages.
Let us not forget the ever-pending defamation actions against Sidney Powell (who is being sued for $1.3 billion) and Mike Lindell (aka “the pillow guy”), who says he’s out of money and can’t pay his lawyers, let alone the $1.3 billion suit against him.
On another front, Hunter Biden has sued former Overstock CEO Patrick Byrne for defamation, “accusing him of falsely saying the president’s son made offers to Iranian officials in exchange for $800 million.”
On the criminal front, earlier this term the Court denied review in Frese v. Formella, a New Hampshire case in which the following two issues were before the Court:
(1) Whether the First Amendment tolerates criminal prosecution for alleged defamation of a public official; and
(2) whether New Hampshire’s common law of civil defamation is too vague to define a criminal restriction on speech, particularly where the state authorizes police departments to initiate prosecutions without the participation of a licensed attorney.
In the bloody swirl of all of the above, Florida lawmakers are attempting to make it easier to sue journalists and others for defamation by, among other things, creating “a presumption that anyone publishing a false statement that relied on an anonymous source acted with ‘actual malice.’”
Finally, there is the question of how all of this will play out in the High Court where Justices Clarence Thomas and Neil Gorsuch have set the stage for reconsidering New York Times v. Sullivan and its progeny.
- V. John Ella, “The Age of Defamation,” Star Tribune (Jan. 24)
- “Donald Trump Is on the Hook for $88.3 Million in Defamation Damages. What Happens Next?” First Amendment Watch (Jan. 29)
- Gabe Rottman, “House passes PRESS Act,” Reporters Committee (Jan. 22)
AI George Carlin podcast prompts lawsuit
- Rhianna Schmunk, “Family of late comedian George Carlin sues podcast hosts over AI impression,” CBC (Jan. 30)
The estate of the late comedian George Carlin is suing the team behind a podcast, claiming the hosts used artificial intelligence to create what his family described as a “ghoulish” impersonation of Carlin for a comedy episode.
The lawsuit filed against hosts Chad Kultgen and Will Sasso, the latter of whom is from B.C., said the team infringed on the estate’s copyright by using Carlin’s life’s work to train an AI program in order to impersonate him for the Dudesy podcast’s hour-long episode titled “George Carlin: I’m Glad I’m Dead.”
“It’s so ghoulish. It’s so creepy,” said Kelly Carlin-McCall, pictured here in New York City in May 2022, of the AI-generated voice of her late father used in the Dudesy podcast. (Slaven Vlasic/Getty Images)
“The defendants’ AI-generated ‘George Carlin Special’ is not a creative work. It is a piece of computer-generated clickbait which detracts from the value of Carlin’s comedic works and harms his reputation," reads the lawsuit filed in California last week.
“It is a casual theft of a great American artist’s work.”
The case is another instance of artificial intelligence testing copyright laws.
- Stewart Baker, “Going Deep on Deep Fakes,” The Volokh Conspiracy (Jan. 30)
Lukianoff responds to Cole
In the last issue, I profiled David Cole’s book review of “The Canceling of the American Mind: Cancel Culture Undermines Trust and Threatens Us All—But There Is a Solution” by Greg Lukianoff and Rikki Schlott.
In a Jan. 24 post for his Substack, “The Eternally Radical Idea,” Lukianoff responds to Cole’s review. Here are a few excerpts:
Overall I thought it was quite positive, but Cole made some arguments — which we actually hear quite often — that I think need addressing. Before I do that, though, I want to stress that I both like and greatly respect David Cole.
“[Lukianoff and Schlott] assert, for example, that the past decade has seen repression of speech akin to or worse than that of the McCarthy era.”
This makes it sound like we actually wrote, “Cancel Culture is worse than McCarthysim!” when we actually wrote something much more specific. We didn’t use the word “McCarthyism” in the book, but we did refer to that particular period of censorship as the Red Scare. Still, we only referenced that three times in the entire book.
[ . . . ]
[W]e refer in the book to 100-150 professors fired in the 11 years of the second Red Scare, and we compare that to the almost 200 that have been fired in the nine-and-a-half years of Cancel Culture (2014 - 2023). However, I realized later that counting 150 for the Red Scare was wrong, because that extra 50 was apparently just tacked on by people assuming the 100 estimate from the largest study done in the ‘50s must be larger. I am confident that more than 100 professors were fired, but you need to compare what the estimate was at the time of the second Red Scare with what the estimate is now, while Cancel Culture is actually occurring. Doubtlessly, additional people will come forward over time, and I believe that the same thing will happen for Cancel Culture — and probably on an even larger scale once people become less worried about the NDAs they had to sign. Regardless, comparing 100 fired professors then to nearly 200 now, with about a year and a half’s difference in favor of the second Red Scare, still makes my point.
Most importantly, whenever I’ve talked about Cancel Culture since, I’ve been pretty clear that I’m talking about on campus, not the country as a whole. The numbers on campus are alarming, and the statements Rikki and I make bear that out.”
[ . . . ]
"Lukianoff and Schlott’s contention that cancel culture began in 2013 and is worse today than ever before also seems questionable.”
We certainly don’t say the climate for speech is worse than “ever before.” The situation for free speech was absolutely worse prior to the First Amendment being strictly interpreted between the 1950s and the 1980s — which is why we consistently add “since the law was established” whenever we compare the current situation to the past.
Our book is also filled with data and examples that show that something really did change since 2014, not subtly, but dramatically — making the current moment worse than any that we could find in the last 50 years since the law was fully established on campus.”
[ . . . ]
“Lukianoff and Schlott do not acknowledge it, but in recent years universities and colleges have in fact undertaken substantial efforts to promote free speech on campus (no doubt in part because of FIRE’s and others’ persistent advocacy).”
Guilty as charged here — and I think this may be just a difference of opinion between me and David Cole. We at FIRE have defeated scores of speech codes and saved countless professors and students from punishments for their clearly protected speech, but that doesn’t mean we don’t still have a major free speech problem on campus. When it comes to tuition costs, bureaucracy, and viewpoint diversity — before you even get to the major threats to academic freedom and free speech — higher ed is in bad shape and needs major reform.
The beginning of a solution is not the same thing as the end of a problem. We have seen proposals to help with the free speech environments on campuses come and go (and go, and go) over the years. As we saw in the late ‘90s and ‘00s, defeated speech codes often come back. Sometimes they are verbatim to ones that were defeated in court.
[ . . . ]
As I’ve said before, my big fear is that a lot of these efforts that schools are taking on are simply window dressing — attempts to make themselves look just good enough so donors will keep giving to them and students will keep going into tremendous debt to enroll. If we’re really going to turn things around, I think we need big, big changes — and a lot of help.
First Amendment Watch Q&A with David Cole
- Susanna Granieri, “ACLU’s David Cole on the Decision to Represent the NRA Before the Supreme Court,” First Amendment Watch (Jan. 30)
In a controversial decision, the American Civil Liberties Union (ACLU) decided to defend the National Rifle Association (NRA) before the Supreme Court this year.
In 2018, the NRA claimed in a federal lawsuit that Maria T. Vullo, the former superintendent of the New York State Department of Financial Services, (DFS), coerced and threatened banks and insurers to sever business relationships with the gun group. The NRA claimed in its suit that Vullo used her position to suppress the “NRA’s pro-Second Amendment viewpoint” with the “intent to obstruct, chill, deter, and retaliate against the NRA’s core political speech,” an alleged violation of the group’s First Amendment rights.
Vullo sent guidance letters to New York financial institutions encouraging them to evaluate the “reputational risks” that may arise from maintaining business relationships with the NRA. Those letters were sent just two months after the February 2018 shooting at the Marjory Stoneman Douglas High School in Parkland, Florida, where 17 students and staff members were killed.
In March 2021, a federal district judge ruled that Vullo’s actions ‘could be interpreted as a veiled threat to regulated industries to disassociate with the NRA or risk DFS enforcement action.’ But in September 2022, the U.S. Court of Appeals for the Second Circuit reversed the lower court’s decision, determining that Vullo had acted in her official capacity and her contact with the businesses was in “good faith.”
The NRA appealed the decision to the Supreme Court, which agreed to hear the case in November. And in December, the ACLU confirmed it would provide legal representation for the gun group, even though it “vigorously” disagrees with its mission.
In an interview with First Amendment Watch, ACLU Legal Director David Cole, who will argue the NRA’s case in front of the Supreme Court, said that despite the pushback the national organization received from its state-based chapters, it vows to protect free speech rights of those with whom they may disagree. Cole warned of the sweeping consequences a decision against the NRA could have for other advocacy organizations, including those protecting women’s and trans rights, and noted that a decision against the NRA could give former President Donald Trump a “powerful tool” to punish his opponents if he returns to the Oval Office.
New scholarly article: Yet more David Cole on 303 Creative v. Elenis and public accommodation laws
- David Cole, “‘We Do No Such Thing’: 303 Creative v. Elenis and the Future of First Amendment Challenges to Public Accommodations Laws,” Yale Law Journal (Jan. 29)
In 303 Creative v. Elenis, the Supreme Court ruled that a business had a right to refuse to design a wedding website for a same-sex couple. But properly understood, the decision’s parameters are narrow, and the decision should have minimal effect on public accommodations laws.
It is not uncommon for parties in litigation to talk past each other. But it’s rarer for Supreme Court Justices to do so. By the time the Court decides a case, there have generally been multiple rounds of briefing in the lower courts, at least two lower court decisions, extensive briefing and argument in the Supreme Court, and the internal exchange of drafts by the Justices. At that point, you would expect the Justices at least to agree on the question they are answering. But in 303 Creative v. Elenis, the Supreme Court’s 2023 decision pitting free speech against equal protection norms, the majority, written by Justice Gorsuch, and the dissent, by Justice Sotomayor, are proverbial ships passing in the night. As Gorsuch acknowledged, “It is difficult to read the dissent and conclude we are looking at the same case.” They weren’t. And that is critical to understanding both the decision itself and its precedential consequences.
In 303 Creative, a wedding website designer claimed that the First Amendment prohibited Colorado from requiring her to design a wedding website for a gay couple. To the majority, the case asked whether a government could “coerce an individual to speak contrary to her beliefs on a significant issue of personal conviction, all in order to eliminate ideas that differ from its own.” The dissent did not disagree that if that were what Colorado’s public accommodations law did, it would violate the First Amendment. But the dissent did not understand Colorado’s law to do anything of the kind.
To the dissent, the question presented was instead whether “a business open to the public [has] a constitutional right to refuse to serve members of a protected class.” And on that question, the majority agreed with the dissent that no such right exists. Indeed, when Justice Sotomayor accused the majority of authorizing businesses providing “expressive” services or products to refuse to serve customers based on their identity in a protected class, the majority retorted, “[W]e do no such thing.”
[ . . . ]
What, then, did the Court actually decide? The answer will determine the decision’s consequences for future First Amendment challenges to public accommodations laws. The Court has previously rejected multiple First Amendment claims by businesses — including universities, restaurants, law firms, and business associations — seeking exemptions from public accommodations and antidiscrimination laws. The majority in 303 Creative did not purport to overturn or even question those precedents. Accordingly, to make sense of the Court’s doctrine, one must seek to harmonize this decision, recognizing a First Amendment exemption, with a long line of cases rejecting seemingly similar claims.
The best way of doing so is to take the Court at its word. According to the majority, this case involved a business owner unwilling to design for anyone a website whose content contravened her beliefs by expressly celebrating a same-sex marriage. It did not involve a business that sought to refuse services to customers based on their sexual orientation. On the majority’s view, Lorie Smith, 303 Creative’s owner, objected to the message the state was compelling, not the identity of the customers. And equally significantly, according to the majority, the state’s interest in applying its public accommodations law where the business did not object to the identity of the customers but to the message requested was suppressing disfavored ideas about marriage, not prohibiting discriminatory sales.
Understood in that light, the decision should have minimal impact on the enforcement of public accommodations and antidiscrimination laws, because it recognizes a First Amendment right only where: (1) a business objects only to expressing a particular message for anyone, not where it objects to serving certain customers because of their identity; and (2) the state’s interest in requiring the business to provide the service is the suppression of disfavored ideas. Because that is not the situation in the vast majority of instances in which antidiscrimination laws are applied to expressive businesses, the decision leaves standing what the Court has described as the “general rule” — namely, that religious and philosophical objections “do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.”
Proposed Iowa law would bar financial institutions from denying services based on rights protected by the First Amendment
- Skylar Tallal, “Iowa bill would limit financial entities' rights to deny service over 1st amendment issues,” Iowa News Now (Jan. 29)
[Recently,] two Republicans in the Iowa Senate advanced a proposal limiting financial discrimination by entities such as banks and payment processing companies.
Under that new bill, financial institutions could not deny services based on rights protected by the first amendment, like personal opinions on greenhouse gas emissions or social issues such as abortion, race, diversity, gender, or firearms.
“No one should have the fear that they could lose their bank accounts, their credit cards, their access to payment processing because of their religious or political beliefs and unfortunately we're starting to see instances of large financial institutions cancelling religious and conservative groups because of their constitutional protected speech and religion," Matt Sharp the senior counsel for Alliance Defending Freedom said.
Webinar on UCLA’s ‘censorial culture’
- Talia Barnes, “UCLA’s censorial culture — and how to fix it,” FIRE (Jan. 26)
To fix a problem, one must first identify it. That’s the impetus behind a new webinar examining the culture around free speech at the University of California, Los Angeles. The top public university in the nation according to U.S. News & World Report’s 2024 college rankings, UCLA’s score in FIRE’s Free Speech Rankings is far less impressive: It lands at 169 of 248 schools.
The Jan. 24 webinar, co-hosted by FIRE and the Bruin Alumni in Defense of Free Speech, features UCLA alum and BADFS group leader Dominic Manser, UCLA law professor Rick Sander, FIRE Director of Engagement & Mobilization Connor Murnane, and FIRE Chief Research Advisor Sean Stevens. Through school-specific data and personal anecdotes, the panelists identify the factors behind UCLA’s low score and share ways to create a campus culture where learning and innovation triumph over speech suppression and self-censorship.
While the webinar digs into trends occurring at UCLA in particular, the same issues UCLA faces are occurring across the nation: increasing intolerance for unconventional views, rampant self-censorship, and administrators willing to cave to calls to cancel speakers and events. Sander, for example, recounts personally facing a university investigation, being discouraged from speaking on certain topics, and being told he could not record a Faculty Colloquium he initiated — all after publishing scholarship that cast doubt on the value of affirmative action policies.
Now, Sander, Manser, and a small but growing group of campus community members aim to change the status quo. They’re doing so, in part, through forming free speech advocacy groups like the Bruin Alumni in Defense of Free Speech, hosting events featuring speakers who will challenge student preconceptions, and encouraging alumni to leverage their connections with the university to support pro-free speech initiatives and reject censorial behavior.
“Universities should be about finding the truth and should be about rigorous debate,” said Manser. “What better place to explore new ideas than college? That’s what it’s all about, and that freedom should not be taken away.”
More in the news
- Eugene Volokh, “Prof. Jeannie Suk Gersen (Harvard Law) on The Future of Academic Freedom,” The Volokh Conspiracy (Jan. 30)
- “Judge Orders Oregon Newspaper Not To Publish Documents Linked to Nike Lawsuit,” First Amendment Watch (Jan. 30)
- Nilay Patel, “Why Sen. Brian Schatz thinks child safety bills can trump the First Amendment,” The Verge (Jan. 30)
- Angele Latham, “Tennessee bill lets residents petition for book bans over 'community standards’” The Tennessean (Jan. 30)
- “Judge Wants Suspensions for Florida Attorneys Who Criticized Discrimination Ruling,” First Amendment Watch (Jan. 30)
- Jessie Appleby, “VICTORY: Princeton amends no-contact order policy after FIRE/ADL letter,” FIRE (Jan. 30)
- “Oregon School District Violates First Amendment: The Liberty Justice Center Demands End to Unconstitutional Limits on Parents’ Free Speech,” Liberty Justice Center (Jan. 29)
2022-2023 SCOTUS term: Free expression and related cases
- Vidal v. Elster (argued Nov. 1)
- O’Connor-Ratcliff v. Garnier (argued Oct. 31)
- Moody v. NetChoice, LLC / NetChoice, LLC v. Paxton / NetChoice, LLC v. Moody (argument: Feb. 26, 2024)
- National Rifle Association of America v. Vullo
- Mckesson v. Doe
- M. C. v. Indiana Department of Child Services
- Molina v. Book
- Pierre v. Attorney Grievance Commission of Maryland
- Porter v. Martinez
- Brokamp v. James
- Speech First, Inc. v. Sands
- O’Handley v. Weber
- Lindke v. Freed (argued Oct. 31)
- Porter v. Board of Trustees of North Carolina State University
- Alaska v. Alaska State Employees Association
- X Corp. v. Garland
- Tingley v. Ferguson (Justice Kavanaugh would grant the petition for a writ of certiorari. Justice Thomas, dissenting from the denial of certiorari. (separate opinion) Justice Alito, dissenting from the denial of certiorari. (separate opinion))
- Jarrett v. Service Employees International Union Local 503, et al
- Sharpe v. Winterville Police Dept.
- Winterville Police Department v. Sharpe
- Stein v. People for the Ethical Treatment of Animals, Inc., et al.
- Blankenship v. NBCUniversal, LLC
- Center for Medical Progress v. National Abortion Federation
- Frese v. Formella
- Mazo v. Way
Free speech related
- Miller v. United States (pending) (statutory interpretation of 18 U.S.C. § 1512(c) advocacy, lobbying and protest in connection with congressional proceedings) // See also Fischer v. United States
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This article is part of First Amendment News, an editorially independent publication edited by 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 Mr. Collins.