Table of Contents
What is the reach of free speech after the Dobbs abortion ruling? Part 2 — FAN 347
The July 13th post of FAN highlighted various attempts and concerns about censorship following the Supreme Court's anti-abortion ruling in Dobbs v. Jackson Women's Health Organization (2022). Given the uptick of developments in this area, we returned to the subject in today's post and will continue to monitor matters as they develop. — rklc
Op-eds and commentary
- "PEN America: Free Expression Rights Are Threatened by Overturning Roe v. Wade," PEN America (June 24)
- Nicole Hemmer, "Controlling who can travel or talk about abortion brings a dark past into our present," CNN (July 23)
- Parker Molloy, "Abortion and the importance of free speech," The Present Age (July 20)
- Summer Lopez & Nadine Farid Johnson, "Why SCOTUS’ Abortion Ruling Is a Disaster for Free Expression," Daily Beast (July 17)
- Mack DeGeurin, "Republicans Warn Google Not to Limit Search for Misleading Anti-Abortion Clinics...Or Else," Gizmodo (July 26)
- Gretchen Cuda Kroen, "Cleveland Metropolitan Bar Association seminar on abortion flagged and removed from Facebook Live," Cleveland.com (July 26)
- Marita Vlachou, "Hulu Blocks Democrats' Political Ads On 'Sensitive' Issues Like Abortion, Guns," Huffington Post (July 26)
- Cat Zakrzewski, "South Carolina bill outlaws websites that tell how to get an abortion," The Washington Post (July 22)
- Ashley Gold, "Next post-Roe battlefield: Online abortion information," Axios (July 1)
- "Instagram and Facebook begin removing posts offering abortion pills," Associated Press (June 28)
- Evan Greer & Lia Holland, "Section 230 Is a Last Line of Defense for Abortion Speech Online," Wired (June 28)
- After Roe: Private Stories, Private Data, Public Listening," Center for Democracy and Technology/National Press Foundation (June 29)
- Priscilla Totiyapungprasert, "Texas health advocates advise El Paso abortion seekers to protect their data privacy, safety," El Paso Matters (July 25)
- "Supreme Court Abortion Ruling “Devastating” for Women’s Right to Privacy," Center for Democracy & Technology (June 24)
Free speech implications of Texas anti-abortion law
- "The PEN Pod: On Authoritarianism, Abortion Restrictions, and Protecting the Freedom to Learn," PEN America (Sep. 17, 2021) (interview with Suzanne Nossel)
- Emily Farris, "Backlash causes Oklahoma City library to clarify guidelines on abortion information," 2News Oklahoma (July 22)
- "Ban on Sexual Health Textbooks Continues Torrent of Censorship in Florida," PEN America (July 21)
- Tom Joyce, "Libraries shouldn't stock pro-abortion children's books," Washington Examiner (July 19)
- Josh Moody, "Abortion Ruling Prompts Legal Questions: Colleges are navigating murky legal territory on abortion issues following the Supreme Court decision overturning Roe v. Wade. Questions loom, but answers are scarce," Inside HigherEd (July 27)
Will institutions face legal liability for aiding and abetting abortion access? How will law enforcement look upon providing advice or transportation for terminating a pregnancy? Will colleges provide legal counsel for students or faculty helping provide abortion access? Can colleges assist employees who want to travel from a prohibition state to another state for an abortion?
- Liam Knox, "Studying Medicine in a Post-Roe America," Inside HigherEd (July 7)
Lisa Michelle Kohring & Weston Mumme, "Employment Implications Arising from Dobbs v. Jackson Women's Health Organization," Holland & Knight (June 29)
- Shelby Tankersley, "Livonia woman's viral abortion rights signs spark free speech debate," Hometown Life (July 16)
- Tim Dickenson, "SCOTUS Buffer Zone Covers Group Fighting Buffer Zones at Abortion Clinics," Rolling Stone (July 1)
The other side: Censoring 'pro-life' advocates
- Valerie Richardson, "Crackdown on pro-life pregnancy center spurs free-speech uproar," The Washington Times (July 25)
Strossen & Coulter: An exchange on hate speech
- Video: "Ann Coulter & Nadine Strossen discuss free speech, political wokeness and more: Nadine Strossen on 'HATE: Why We Should Resist it With Free Speech, Not Censorship'”
Forthcoming book on 'the myth of harm'
- Sarah Cleary, "The Myth of Harm: Horror, Censorship and the Child" (Bloomsbury Academic, Dec. 29, 2022)
The horror genre has endured a long and controversial success within popular culture. Fraught with accusations pertaining to its alleged ability to harm and corrupt young people and indeed society as a whole, the genre is constantly under pressure to suppress that which has made it so popular to begin with - its ability to frighten and generate discussion about society's darker side. Recognising the circularity of patterns in each generational manifestation of horror censorship, The Myth of Harm draws upon cases such as the Slenderman stabbing and the James Bulger murder amongst many others in order to explore the manner in which horror has been repeatedly cast as a harmful influence upon children at the expense of scrutinising other more complex social issues.
Focusing on five major controversies beginning in the 1930's Golden Age of Horror Cinema and ending on a more contemporary note with Cyber-Gothic horror – this book identifies and considers the various myths and falsehoods surrounding the genre of horror and question the very motivation behind the proliferation and dissemination of these myths as scapegoats for political and social issues, platforms for “moral entrepreneurs” and tools of hyperbole for the news industry.
Forthcoming book on censorship of early modern drama
- Richard Dutton, "Mastering the Revels: The Regulation and Censorship of Early Modern Drama," Oxford University Press, 2nd ed., Oct. 14, 2022)
Mastering the Revels traces the measures taken by the governments of Elizabeth I, James I, and Charles I to regulate the new phenomenon of fixed playhouses and resident playing companies in London, and to censor their plays. It focuses on the Masters of the Revels, whose primary function was to seek out theatrical entertainment for the court but whose role expanded to include oversight of the players and their playhouses.
The book proceeds chronologically, tracking each of the Masters in the period--Edmund Tilney (served 1579-1610), Sir George Buc (1610-22), Sir John Astley (1622-3), and Sir Henry Herbert (1623-1642). Tilney was the first to receive a Special Commission giving him wide-ranging powers over the players. When Buc first became involved is examined here in detail, as is the parallel history of the Children of the Queen's Revels who between 1604 and 1608 staged some of the most scandalous plays of the era. Astley succeeded Buc, but soon sold the office to Herbert, who then served to the closing of the theatres.
Manuscripts of plays censored by Tilney, Buc, and Herbert have survived and are examined in detail to assess their concerns. Large parts of Herbert's office-book have also survived, giving detailed insights into his professional life, including interactions with both the court and the players. It reveals the difficulties he faced negotiating recurrent popular pressure for war against Spain, resistance to Archbishop Laud's reforms of the church, and Henrietta Maria's problematic presence as a Catholic queen to Charles I.
New scholarly article: Nunziato on free speech & dominant social media platforms
- Dawn Carla Nunziato, "Protecting Free Speech and Due Process Values on Dominant Social Media Platforms," Hastings Law Journal (2022)
Dominant social media platforms have been increasingly perceived as engaging in discrimination against conservative and right-wing viewpoints. Trump’s deplatforming, coupled with the platforms’ recent removal of Covid- and election-related misinformation, led to cries of censorship by conservatives and increased calls for regulation of the platforms. Supreme Court Justice Thomas took up this charge, suggesting a regulatory path forward for lawmakers seeking to hold the platforms liable for alleged viewpoint discrimination and censorship.
This Article examines the desirability and constitutionality of recent legislative initiatives that seek to provide remedies for these alleged ills and to rein in the dominant platforms’ discretion exercised in content moderation decisions by prohibiting them from engaging in viewpoint discrimination, and by imposing notice, transparency, and other due process-type obligations. This Article analyzes the proposed legislation in light of the obligations that the U.S. government historically has historically imposed on common carriers and broadcasters. This Article then examines the procedural dimensions of our free speech commitments and values and our commitments to due process, including those enshrined in the Constitution and in International Covenant on Civil and Political Rights.
This Article concludes with a favorable assessment of the desirability and constitutionality of proposed legislation that would require platforms to comport with principles of nondiscrimination and due process. This Article contends that, while the platforms should continue to enjoy the discretion to regulate many categories of speech that are protected by the First Amendment and to restrict speakers in clear and blatant violation of their terms of service, the dominant platforms should generally be prohibited from engaging in blatant viewpoint or speaker-based discrimination and should be required to accord their users certain due process type protections.
Three (!!!) new or forthcoming scholarly articles by Eugene Volokh
- Eugene Volokh, "Bans on Political Discrimination in Places of Public Accommodation and Housing," NYU Journal of Law & Liberty (2022)
In several major cities and counties, in some territories, perhaps in the whole states of California and Montana, and to a small extent in Minnesota, private businesses may not discriminate against patrons based on certain kinds of political activities. In most of these jurisdictions (plus in South Carolina) it’s also illegal to discriminate based on political activities in housing (and sometimes in commercial real estate transactions). Some of these bans are narrow, just protecting the decisions to belong to or support a political party. Others are broader, applying to political advocacy more generally, including political advocacy on the business’s premises.
This article describes such rules, and the cases that have been decided under them, so as to better understand the options that legislators have chosen with regard to this question, especially when evaluating similar new proposals. This may be particularly helpful given the interest in using public accommodations law as a model for limiting social media platforms’ ability to block users based on their speech or political ideology.
And it’s also helpful to see these rules when considering the implications of certain readings of public accommodation law more broadly. Say, for instance, that courts conclude that a wedding photographer has no First Amendment right to refuse to photograph a same-sex wedding in a state with a ban on sexual orientation discrimination by public accommodations. A photographer would then have no First Amendment right to refuse to photograph a Nazi or Communist event in a jurisdiction with a ban on political discrimination by public accommodations. Indeed, briefs and an opinion in such cases have drawn this analogy.
- Eugene Volokh, "The Right to Defy Criminal Demands," NYU Journal of Law & Liberty (2022)
Craig is trying to force Danielle to do something, by explicitly or implicitly threatening to criminally retaliate if she doesn’t go along—and if Craig makes good on the threats, third-party bystanders might suffer. Should the legal system require Danielle to comply with the demands, on pain of civil liability or even of criminal punishment? Or should Danielle be allowed to defy Craig’s demands, even if this means a higher risk to bystanders?
These questions can arise in many different situations: negligence law, nuisance law, the heckler’s veto, disturbing the peace law more generally, the duty to retreat, the duty to comply with negative demands, and more. And they can arise with regard to many different criminal demands, whether political (e.g., terrorist threats aimed at abortion clinics, bookstores, and the like) or personal. This Article surveys all these areas, and suggests that, generally speaking, the law should protect defiance of criminal demands against legal liability, even when such defiance can increase the risk that the criminal will harm third parties
- Eugene Volokh, "The Law of Pseudonymous Litigation," Hastings Law Journal (2022)
When may parties in American civil cases proceed pseudonymously? The answer turns out to be deeply unsettled. This Article aims to lay out the legal rules (such as they are) and the key policy arguments, in a way intended to be helpful to judges, lawyers, pro se litigants, and academics.
More Volokh . . . on four new libel cases
- Eugene Volokh, "Baseball Libel," The Volokh Conspiracy (July 26)
- Eugene Volokh, "Important Case About #TheyLied Libel Lawsuits Against Federal Employees," The Volokh Conspiracy (July 26)
- Eugene Volokh, "Harassment Allegations Lead to Potentially Viable Libel Lawsuit," The Volokh Conspiracy (July 26)
- Eugene Volokh, "Lies About Science, Government, Etc. in Specific Libel or Fraud Lawsuits," The Volokh Conspiracy (July 26)
Upcoming August conference on censorship and sexual freedom
- "The Censorship of Sexual Freedom," Woodhull's Human Rights Commission
August 4, 2022
2:00 pm ET
Censorship is everywhere – and almost all of it is aimed squarely at sexual expression. Limiting our access to and enjoyment of sexual freedom is a fundamental human rights violation that affects every one. That’s why Woodhull’s Human Rights Commission at #SFS22 will focus on the impact of censorship on individuals, highlighting opportunities for cross-movement strategies to push back against the growing tide of laws and policies. Testimony will come from healthcare providers, museum curators, librarians, and from a young person directly impacted by Florida’s “Don’t Say Gay” bill.
'So to Speak' on the popular free speech platform Substack
- "Substack, a platform for free speech?,” So to Speak (July 21)
Substack — the popular newsletter and publishing service — has made a name for itself by swimming against the current: As many technology companies devise new ways to censor or moderate content on their platforms, Substack made free speech one of its core values and, in doing so, has attracted bloggers and journalists from across the political spectrum.
“While we have content guidelines that allow us to protect the platform at the extremes, we will always view censorship as a last resort, because we believe open discourse is better for writers and better for society,” proclaimed Substack’s founders.
Lulu Cheng Meservey is Vice President of Communications for Substack. She went viral earlier this year when she tweeted about why free expression is an important principle for Substack. She joins us this week to discuss Substack, free speech, and the new media ecosystem.
More in the news
- Elura Nanos, "Federal Judge Blocks Criminal Libel Investigation of N.C. AG’s Campaign Ad, Agrees Law Likely Violates First Amendment," Law & Crime (July 26)
- Eugene Volokh, "Parties Can't Seal Entire (Settled) Case Despite Risk of 'Reputational Damage and Embarrassment'," The Volokh Conspiracy (July 26)
- Zach Greenberg, "Virginia Commonwealth University plans to violate the First Amendment rights of thousands of students with deferred recruitment policy," FIRE (July 26)
- Jimmy Jenkins, "Arizona prisons violate First Amendment by banning The Nation magazine issues, ACLU claims," Arizona Republic (July 25)
- "Next Up: Lawsuit Imminent to Challenge New Arizona Law Restricting the Recording of Police," First Amendment Watch (July 25)
- "Portland settles excessive-force suit brought by reporters," Associated Press (July 25)
- "The Left does not think the First Amendment applies to the Right: Rep Jim Jordan," Fox News (July 23)
- Fabio Bertoni, "Justice Neil Gorsuch’s Radical Reinterpretation of the First Amendment," The New Yorker (July 20)
- "Judge refuses to block Alaska campaign-disclosure rules," Associated Press (July 19)
2021-2022 SCOTUS term: Free expression & related cases
- Kennedy v. Bremerton School District (Gorsuch: First Amendment claim affirmed)
- Federal Election Commission v. Ted Cruz for Senate (Roberts: First Amendment claim affirmed)
- Shurtleff v. Boston (Breyer: First Amendment claim affirmed)
- Houston Community College System v. Wilson (Gorsuch: First Amendment claim denied)
- City of Austin, Texas v. Reagan National Advertising of Texas Inc. (Sotomayor: 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
- 303 Creative LLC v. Elenis
First Amendment-related petitions
- Outdoor One Communications LLC v. Charter Township of Canton, Michigan (cert. denied)
- Egbert v. Boule (rejecting Bivens cause of action for First Amendment retaliation claim)
- Arlene’s Flowers Inc. v. Washington (petition for rehearing)
Applications for stay orders
- Netchoice v. Paxton (application denied)
- Romeril v. Securities and Exchange Commission
- American Society of Journalists v. Bonta
- Smith v. United States
- Marshall v. Supreme Court of the State of New Mexico
- 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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