"Justice Samuel Alito’s sweeping and blunt draft majority opinion from February overturning Roe remains the court’s only circulated draft in the pending Mississippi abortion case, POLITICO has learned, and none of the conservative justices who initially sided with Alito have to date switched their votes. No dissenting draft opinions have circulated from any justice, including the three liberals."
— Josh Gerstein, Alexander Ward & Ryan Lizza (Politico, May 11)
"This appears to be at least the fifth different leak out of #SCOTUS related to Dobbs — after the WSJ editorial page, the original Politico leak, CNN, and the Washington Post. (And I may be missing one.)"
— Stephen Vladeck (Twitter, May 11)
In 1983, shortly after he stepped down as the Supreme Court's public information officer, Barrett McGurn wrote: "The Supreme Court is the most open of Washington's governmental institutions. In effect, it operates in a fishbowl." He took strong exception to The Washington Post's view that the Court operated as a secret body.
If the "fishbowl" proposition were true, the public might justifiably ask: Will the Court release the findings of its investigation into the leaks that continue to plague it? And if so, when will it do so?
While confirming the authenticity of the leaked draft of Justice Samuel Alito's opinion, Chief Justice John Roberts declared the leak to be “a singular and egregious breach” of the Court’s trust. “To the extent this betrayal of the confidences of the Court was intended to undermine the integrity of our operations," he added, "it will not succeed.”
Request directed to the Chief Justice & the Court's public information officer
The Chief Justice has “directed the Marshal of the Court to launch an investigation into the source of the leak,” which raises a number of questions. Thus, the following questions are respectfully submitted to the Chief Justice and Ms. Patricia McCabe, the Court's current public information officer:
- Will all of the results of the leaks investigation be made public?
- Was there an investigation into whether the Court's computers had been hacked and if so, what did that reveal? And who exactly conducted it (e.g. the Justice Department or FBI)?
- Were the law clerks and Court employees asked to sign statements affirming that they had not leaked (verbally or otherwise) any information?
- Were the Justices asked to do likewise and did all comply? Were they also asked whether the draft opinion was readily accessible to anyone outside the Court?
- If it is determined that no law clerk or Court employee leaked the information, will that fact be made public?
- Did the FBI or any agency (public or private) outside of the Court assist in the investigation of the leaks?
- What disciplinary action (administrative and/or criminal) will be taken against any law clerk or Court employee involved in leaking information?
- If it is determined that a Justice was involved in leaking information, will that information be made public?
- If the results of the investigation are to be made public, how long after the investigation will those results be released?
- If the results of the investigation are not made public, or only partially so, what would be the justification for non-disclosure or partial disclosure?
"My expectation is that Chief Justice Roberts will probably keep the details of the investigation closed — or rather, as close as he can, given that someone ‘close to’ the Court was apparently the leaker. That said, to the extent he decides to involve the executive branch in any way — whether it is DOJ or the FBI — I think the public has a strong interest in knowing about it, especially if it involves a possible computer hack/security breach.
From a purely parochial perspective — my concern is about investigations of Josh Gerstein and/or Politico. I would want to know whether the Court had investigated and exhausted all internal sources before seeking information from the journalists."
— Professor Jane Kirtley, University of Minnesota Law School
- Matthew Butterick, "What Can We Deduce from a Leaked PDF" (May 5)
ACLU urges re-platforming Trump
This from the ACLU's May 10th press release:
[Recently], Elon Musk announced he plans to reverse former President Trump’s permanent ban on Twitter if his bid to buy the company is successful.
Below is a reaction from Anthony D. Romero, ACLU executive director:
"You’d be hard-pressed to find a more steadfast opponent of Trump and his policies than the ACLU, but Elon Musk’s decision to re-platform President Trump is the right call. When a handful of individuals possess so much power over the most important forums for political speech, they should exercise that power with restraint. If Trump violates the platform rules again, Twitter should first employ lesser penalties like removing the offending post — rather than banning a political figure.
"Like it or not, President Trump is one of the most important political figures in this country, and the public has a strong interest in hearing his speech. Indeed, some of Trump’s most offensive tweets ended up being critical evidence in lawsuits filed against him and his administration. And we should know — we filed over 400 legal actions against him."
Related, the Knight Institute's comments
The following can be attributed to Jameel Jaffer, executive director of the Knight First Amendment Institute at Columbia University.
One thing Elon Musk gets right is that major social media platforms play a very significant role now in shaping public discourse—shaping speech that’s important to our democracy. But the question of what free speech means on a social media platform is more complicated than Musk seems to realize. Most people—across the political spectrum—don’t actually want their social media platforms to be unmoderated. A platform that moderated only illegal speech would quickly be overcome by spam and garbage. That kind of platform wouldn’t work for anyone, whatever their political views.
So the real question isn’t whether to moderate content but how. There’s no single “free speech” answer to that question. Moderation isn’t a matter of turning a single dial that controls how much censorship or how much free speech there is on a platform. Trade-offs are unavoidable. 'Free speech' is a good starting point for the conversation, but it’s really just a starting point, as Musk is quickly going to learn."
Volokh on picketing residences of Supreme Court Justices
- Eugene Volokh, "Federal Statute Bans Picketing Judges' Residences 'With The Intent of Influencing [the] Judge,'" The Volokh Conspiracy (May 6)
- Whoever, with the intent of interfering with, obstructing, or impeding the administration of justice, or
- with the intent of influencing any judge, juror, witness, or court officer, in the discharge of his duty,
- pickets or parades in or near a building housing a court of the United States, or
- in or near a building or residence occupied or used by such judge, juror, witness, or court officer, or
- with such intent uses any sound-truck or similar device or resorts to any other demonstration in or near any such building or residence,
- shall be fined under this title or imprisoned not more than one year, or both.
A similar provision focused just on picketing outside courts (equivalent to subsection 3 above) was upheld in Cox v. Louisiana (1965); and the logic of that decision would apply equally to residential picketing (subsection 4 above). [UPDATE: Note that U.S. v. Grace (1983), struck down a total ban on demonstrations near the Supreme Court; but the law there was "not limited to expressive activities that are intended to interfere with, obstruct, or impede the administration of justice," as Justice Marshall's separate opinion noted.]
Trump & anti-vaxxers lose First Amendment lawsuit against Twitter
- Adam Klasfeld, "‘Twitter Is a Private Company’: Trump, Anti-Vaxxers, and Dark Money Group Lose in First Amendment Lawsuit Against Twitter," Law & Crime (May 9)
Former President Donald Trump, anti-vaccination activists and others cannot gin up a First Amendment lawsuit against Twitter for the decisions the private company made to suspend or ban their accounts, a federal judge ruled.
"Twitter is a private company, and ‘the First Amendment applies only to governmental abridgments of speech, and not to alleged abridgments by private companies,'" U.S. District Judge James Donato noted on Friday.
In July 2021, Trump originally sued Twitter in the Southern District of Florida, one of a spate of putative class action lawsuits against social media companies that kicked him off their platforms in the Jan. 6 attack on the U.S. Capitol. Florida influencer Linda Cuadros, who was booted from Twitter for a post about vaccines, was a co-plaintiff in an earlier version of the lawsuit, along with the American Conservative Union, an Alexandria, Va.-based dark money group that lost followers but was not kicked off the platform.
- Eugene Volokh, "Court Dismisses Lawsuit Against Trump for His Use of the Terms 'Chinese Virus' and 'Kung Flu,'" The Volokh Conspiracy (May 6)
Headline: 'University of Florida’s chilling message to faculty: Abide by House Bill 7 because our funding’s on the line'
This from Adam Steinbaugh over at FIRE:
Last month, as Florida enacted House Bill 7 — the first anti-“critical race theory” bill in the country to directly limit classroom discussion in higher education — FIRE wrote Florida’s public universities and colleges, including the University of Florida, warning that some provisions in the law that would regulate teaching in higher education are unenforceable because they violate the First Amendment. We urged colleges to interpret the law as narrowly as possible or, if necessary, to ignore its unconstitutional provisions.
The University of Florida, unfortunately, is choosing instead to chill faculty speech.
Last week, it issued guidance to its faculty, introduced with a video from outgoing president Kent Fuchs, who explains that the law “focuses on instructional topics and practices.” The slideshow then leads off with this slide, focusing primarily on what’s really important to the university — the potential for “large financial penalties.”
HB 7’s vague admonitions — prohibiting “instruction” that “espouses, promotes, advances, inculcates, or compels [students] to believe” eight enumerated subjects concerning racism, sexism, and society — are alone enough to chill classroom discussions. The university’s guidance doesn’t help clarify much, as it merely describes the “theme” of the bill (do “not present personal beliefs about a topic as the ‘right’ point of view or . . . encourage students to adopt a specific belief”) and instructs faculty that they may not even “suggest” any of the prohibited concepts. FIRE warned that HB 7’s limitations on higher education curriculum were unconstitutional and urged lawmakers to amend the legislation to avoid this problem. . . .
Unfortunately, UF’s guidance exacerbates this problem by putting a finger on the scale, reminding faculty of the gravity of potential consequences. What happens if a legislative committee or Board of Governors feels their discussion isn’t “objective” enough or thinks it “advances” a view disfavored by the state? Their institution will lose upwards of $100 million in funding.
Soon-to-be-released book on John Stuart Mill's political philosophy
- John Peter DiIulio, "Completely Free: The Moral and Political Vision of John Stuart Mill" (Princeton University Press, June 14, 2022)
An original, unified reconstruction of Mill’s moral and political philosophy―one that finally reveals its consistency and full power
Few thinkers have been as influential as John Stuart Mill, whose philosophy has arguably defined Utilitarian ethics and modern liberalism. But fewer still have been subject to as much criticism for perceived ambiguities and inconsistencies. In Completely Free, John Peter DiIulio offers an ambitious and comprehensive new reading that explains how Mill’s ethical, moral, and political ideas are all part of a unified, coherent, and powerful philosophy.
Almost every aspect of Mill’s practical philosophy has been charged with contradictions, illogic, or incoherence. Most notoriously, Mill claims an absolute commitment both to promoting societal happiness and to defending individual liberty―a commitment that many critics believe must ultimately devolve into an either/or. DiIulio resolves these and other problems by reconsidering and reconstructing the key components of Mill’s practical thought: his theories of happiness, morality, liberty, and freedom.
Casting new light on old texts, DiIulio argues that Mill’s Utilitarianism and liberalism are not only compatible but philosophically wedded, that his theories naturally emanate from one another, and that the vast majority of interpretive mysteries surrounding Mill can be readily demystified. In a manner at once sympathetic and critical, DiIulio seeks to present Mill in his most lucid and potent form.
From the higher pleasures and moral impartiality to free speech and nondomination, Completely Free provides an unmatched account of the unity and power of Mill’s enduring moral and political thought.
Forthcoming book: Bollinger & Stone (editors) on social media and free speech
- Lee Bollinger & Geoffrey Stone, "Social Media, Freedom of Speech, and the Future of our Democracy" (Oxford University Press, Aug. 1, 2022)
A broad explanation of the various dimensions of the problem of "bad" speech on the internet within the American context.
One of the most fiercely debated issues of this era is what to do about "bad" speech-hate speech, disinformation and propaganda campaigns, and incitement of violence-on the internet, and in particular speech on social media platforms such as Facebook and Twitter.
In Social Media, Freedom of Speech, and the Future of our Democracy, Lee C. Bollinger and Geoffrey R. Stone have gathered an eminent cast of contributors--including Hillary Clinton, Amy Klobuchar, Sheldon Whitehouse, Mark Warner, Newt Minow,Tim Wu, Cass Sunstein, Jack Balkin, Emily Bazelon, and others--to explore the various dimensions of this problem in the American context. They stress how difficult it is to develop remedies given that some of these forms of "bad" speech are ordinarily protected by the First Amendment.
Bollinger and Stone argue that it is important to remember that the last time we encountered major new communications technology-television and radio-we established a federal agency to provide oversight and to issue regulations to protect and promote "the public interest." Featuring a variety of perspectives from some of America's leading experts on this hotly contested issue, this volume offers new insights for the future of free speech in the social media era.
Forthcoming book on cancel wars and free speech
- Sigal R. Ben-Porath, "Cancel Wars: How Universities Can Foster Free Speech, Promote Inclusion, and Renew Democracy" (University of Chicago Press, Jan. 16, 2023)
An even-handed exploration of the polarized state of campus politics that suggests ways for schools and universities to encourage discourse across difference.
College campuses have become flashpoints of the current culture war and, consequently, much ink has been spilled over the relationship between universities and the cultivation or coddling of young American minds.
Philosopher Sigal R. Ben-Porath takes head-on arguments that infantilize students who speak out against violent and racist discourse on campus or rehash interpretations of the First Amendment. Ben-Porath sets out to demonstrate the role of the university in American society and, specifically, how it can model free speech in ways that promote democratic ideals. In Cancel Wars, she argues that the escalating struggles over “cancel culture,” “safe spaces,” and free speech on campus are a manifestation of broader democratic erosion in the United States. At the same time, she takes a nuanced approach to the legitimate claims of harm put forward by those who are targeted by hate speech.
Ben-Porath’s focus on the boundaries of acceptable speech (and on the disproportional impact that hate speech has on marginalized groups) sheds light on the responsibility of institutions to respond to extreme speech in ways that proactively establish conversations across difference. Establishing these conversations has profound implications for political discourse beyond the boundaries of collegiate institutions. If we can draw on the truth, expertise, and reliable sources of information that are within the work of academic institutions, we might harness the shared construction of knowledge that takes place at schools, colleges, and universities against truth decay. Of interest to teachers and school leaders, this book shows that by expanding and disseminating knowledge, universities can help rekindle the civic trust that is necessary for revitalizing democracy.
Forthcoming book on 'Big Tech' and free speech
- Ken Buck, "BIG TECH TYRANNY: Modern Monopolies Crush Free Speech and the Free Market" (Humanix Books, December 6, 2022)
Today’s big tech monopolies threaten the core of our political system, controlling the information that is available to the public and shaping that information to benefit their own commercial interests and political views. The most concerning strategy of the big tech monopolies is their exploitation of personal data and the tech giants’ role as digital gatekeepers.
When control over information in a democracy rests in the hands of only a few individuals, the results of an election can be manipulated by those individuals. With big tech’s massive financial resources and command of critical digital media, these companies are positioned to dominate and distort the marketplace of ideas.
YouTube: 'Is Free Speech Killing Democracy?'
From the Maxwell School of Syracuse University:
The State of Democracy Lecture Series welcomed Jacob Mchangama, Founder and Executive Director of Justitia, and host of the podcast "Clear and Present Danger: a history of free speech." Justitia is Denmark’s first judicial think tank aiming to promote the rule of law and fundamental human rights and freedom rights both within Denmark and abroad. Mchangama discussed the idea advanced by many that free speech has been “weaponized” by extremists and turned against the very values this freedom was meant to serve, as witnessed by the attack on the Capitol on January 6th which could not have happened without a campaign of lies and disinformation that went viral on social media. But it will use both historical and contemporary examples to argue that free speech is still the “Bulwark of Liberty.”
- Lizzie O'Leary, "The First Amendment vs. Free Speech Online," Slate (May 10)
- Graham Piro, "As one investigation into faculty member’s SCOTUS tweets drags on, Georgetown wisely avoids opening another," (May 10)
- Alexis Keenan, "Elon Musk's vision for Twitter and the First Amendment: 'What should be done?’," Yahoo Finance (May 8)
- Jon Brown, "DC police aware of 'First Amendment demonstrations' meant to disrupt Sunday mass," Fox News (May 8)
- Eugene Volokh, "Some More on Expert Witnesses in Libel Lawsuits," The Volokh Conspiracy (May 7)
2021-2022 SCOTUS term: Free expression & related cases
- 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
- Edgar et al. v. Haines
- American Society of Journalists v. Bonta
- Arlene’s Flowers Inc. v. Washington (petition for rehearing)
- 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.