Table of Contents

Still unyieldingly provocative: ‘The Death of Discourse’ returns — First Amendment News 357

“This is a disturbing yet mind-opening tour through the deep chasm that separates our free speech ideals from our cultural reality. The new edition could by all rights be titled ‘We Warned You.’” — Jane Bambauer
Death of Discourse book cover

Now in its third edition, “The Death of Discourse,” by Ronald K. L. Collins and David M. Skover continues its robust cultural and jurisprudential critique that began in 1996. On that score, here is professor Pierre Schlag’s take on the first edition of the book for the Harvard Law Review:

The Death of Discourse closes with a quote from Albert Camus: ‘I do not give the human race more than one chance in a thousand. But I should not be a man if I did not operate on that one chance.’ After finishing The Death of Discourse, however, the reader might well wonder whether Camus has not overstated the odds for the human race. Indeed, The Death of Discourse is relentless in exploring the depths of our predicament.

Stated most broadly, the predicament is this: with the perfection of communications technology, the refinement of capitalist rationality, and the intensification of market-created desire, the resulting culture is one that renders its own ostensible steering mechanism — namely, reasoned discourse — impossible. This broad-scale rendition of the predicament is quite bleak, for there is no exit; everyone is included. We are all living in a culture that is, quite literally, doing itself in, mindlessly devoting itself to frivolous self-amusement: the unbridled pursuit of thrills, chills, titillations, fun, and ultimately, death.

Returning to the scene of the cultural crime more than a quarter-century later, Dean Erwin Chemerinsky had this to say about the third edition of “The Death of Discourse”:

Professors Collins and Skover have written a provocative and important book, that was prescient in earlier editions and very timely now, about the meaning of freedom of expression when false speech is prevalent, when commercial interests dominate, and when pornography is easily accessible. Some might think of the internet and social media as creating a golden age for free speech. But Collins and Skover powerfully suggest that instead we might be seeing the end of the discourse that the First Amendment exists to create and that is essential for a democracy. Their unique, thought-provoking writing style invites readers to ponder our cultural dilemma against the backdrop of the high principles of Madisonian democracy to which we claim allegiance in word, though not in practice.

It is true: The book is certain to please some and offend others, which explains why so many have weighed in on its provocative claims since they first surfaced decades ago in several law reviews (see, e.g., “Noble Lies and the First Amendment: A Symposium on The Death of Discourse”). Given the wide range of views it triggered, perhaps the following observation, tendered in 1996, continues to ring true:

The Death of Discourse is literary dynamite ready to demolish the pomp and hypocrisy obstructing the proud edifice of the First Amendment. This book poses a clear and present danger in the most deserving sense. 

Leonard W. Levy, Pulitzer Prize-winning American historian and author of “Emergence of a Free Press”

Justices to review parody case

Last week the Supreme Court agreed to hear a First Amendment trademark case. The two issues raised in Jack Daniel’s Properties, Inc. v. VIP Products LLC are:

(1) Whether humorous use of another’s trademark as one’s own on a commercial product is subject to the Lanham Act’s traditional likelihood-of-confusion analysis, 15 U.S.C. § 1125(a)(1), or instead receives heightened First Amendment protection from trademark-infringement claims; and

(2) whether humorous use of another’s mark as one’s own on a commercial product is “noncommercial” and thus bars as a matter of law a claim of dilution by tarnishment under the Trademark Dilution Revision Act, 15 U.S.C. § 1125(c)(3)(C).

The dispute between petitioner Jack Daniel’s Properties and respondent VIP Products is over certain dog toys the latter markets and sells. The petitioner argues that the label on those toys illegally resembles Jack Daniels’ iconic image. 

Here is how James Romoser at SCOTUSblog summarizes the case:

Lisa Blatt, counsel for Petitioner
Lisa Blatt, counsel for Petitioner

Jack Daniel’s says the plastic toys are tarnishing its brand and violating its federal trademark rights. On the toys’ labels, the name “Jack Daniel’s” is replaced with “Bad Spaniels,” and the words “Old No. 7 brand” and “Tennessee Sour Mash Whiskey” are replaced with “The Old No. 2 on Your Tennessee Carpet.” While the whiskey bottle notes that it is 40% alcohol by volume, the toys say they are “43% Poo by Vol.” and “100% Smelly.”

The maker of the toys, Arizona-based VIP Products, says they are humorous parodies entitled to First Amendment protection. The U.S. Court of Appeals for the 9th Circuit agreed, prompting Jack Daniel’s to seek Supreme Court review.

Businesses ranging from Campbell Soup to Levi Strauss urged the justices to take the case and clarify when trademark law prohibits a spoof of a company’s brand. If the 9th Circuit’s decision is allowed to stand, the brands say, federal trademark law will be all bark and no bite. 

  • Lisa Blatt is the counsel of record for the petitioner. Last month Ms. Blatt, a seasoned appellate lawyer, argued Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith before the court.
  • Bennett Evan Cooper, the author of a treatise on federal appellate practice, is the counsel of record for the respondent. 

ACLU files cert petition

The case is Arkansas Times v. Waldrip. The issue raised 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., 458 U.S. 886 (1982) and the First Amendment’s central prohibition against content and viewpoint discrimination.

This from the cert. petition filed on behalf of the petitioner by Brian M. Hauss (ACLU counsel of record):

Brian Hauss counsel for Petitioner
Brian Hauss, counsel for Petitioner

In October 2018, the Arkansas Times and the [University of Arkansas Board of Trustees (UBBT)] were preparing to enter into new contracts for Pulaski Tech’s advertising in the newspaper. Pulaski Technical College’s Director of Purchasing and Inventory, acting on behalf of the UABT, informed Mr. Alan Leveritt [CEO of the Arkansas Times] that he would have to sign a certification stating that the Arkansas Times is not currently engaged in, and agrees for the duration of the contract not to engage in, a boycott of Israel [as required by state law — Ark. Code Ann. § 25-1-501 et seq.].

The UABT informed Mr. Leveritt that absent this certification, it would refuse to contract with the Arkansas Times for any additional advertising. Mr. Leveritt, as CEO of the Arkansas Times, declined to sign the certification. The Arkansas Times refuses to enter into an advertising contract with UABT that is conditioned on the unconstitutional suppression and compulsion of protected speech under the First Amendment. The Arkansas Times is unwilling to accept a 20% reduction in payment by UABT for its advertising services. The Arkansas Times is willing and able to enter into new or renewed advertising contracts for the College, but refuses to sign the required anti-boycott certification. The UABT has refused to enter into numerous advertising contracts with the Arkansas Times, each of which would have been for an amount in excess of $1,000, because the Arkansas Times refuses to sign the anti-boycott certification.

Related

Headline: ‘Major News Outlets Urge U.S. to Drop Its Charges Against Assange’

This, from a news story by Charlie Savage at The New York Times:

Julian Assange
Julian Assange (Wikipedia)

The New York Times and four European news organizations called on the United States government on Monday to drop its charges against Julian Assange, the WikiLeaks founder, for obtaining and publishing classified diplomatic and military secrets.

In a joint open letter, The Times, The Guardian, Le Monde, Der Spiegel and El País said the prosecution of Mr. Assange under the Espionage Act “sets a dangerous precedent” that threatened to undermine the First Amendment and the freedom of the press.

“Obtaining and disclosing sensitive information when necessary in the public interest is a core part of the daily work of journalists,” the letter said. “If that work is criminalized, our public discourse and our democracies are made significantly weaker.”

[ . . . ]

The letter comes as Attorney General Merrick B. Garland has sought to rein in ways in which the Justice Department has made it harder for journalists to do their jobs. In October, he issued new regulations that ban the use of subpoenas, warrants or court orders to seize reporters’ communications records or demand their notes or testimony in an effort to uncover confidential sources in leak investigations. 

Related

Forthcoming book on minorities, free speech, and the internet

Minorities Free Speech and the Internet book cover

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 on a pluralistic society. Thirdly, they examine different case law addressing minority sensibilities, historical discrimination, 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.

Forthcoming scholarly article: Volokh on ‘Free Speech Rules, Free Speech Culture, and Legal Education’

My claim in this Essay will be that creating a culture of free speech and openness to contrary ideas at law schools—including on the most controversial of topics—is vital not just for democratic self-government, the search for truth, self-expression, and the like, but also for effectively training future lawyers. Law schools should do all they can to communicate this point to students, in thought and action.

Must see: Video of city of Eastpointe, Mich., council meeting 

Related

‘So to Speak’ video podcast

FIRE’s new Director of Public Advocacy Aaron Terr and the Cato Institute's Will Duffield join the show to discuss a slew of recent free speech news. California gets it right on rap lyrics but wrong on coronavirus misinformation. One Texas school district repeatedly ventures into book banning. LeBron James spreads "hate speech" misinformation. Is government "jawboning" censorship? And, yes, Elon Musk . . . again. 

Show notes 

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.

Recent Articles

FIRE’s award-winning Newsdesk covers the free speech news you need to stay informed.